In addition to the need for legal services, the elder law and special needs law attorney  often is confronted with a client experiencing non-legal issues requiring medical care, long-term care services and supports, public benefits, insurance coverage, protection from exploitation and neglect, and end-of-life care planning.  

The attorney embracing the holistic approach (See Standard A. Holistic Approach) is encouraged, but not required, to provide assistance through non-legal services if the attorney has the experience and expertise to do so. Alternatively, the attorney may use nonattorneys to provide such non-legal services (also known as ancillary services).  

Common examples of professionals who provide non-legal services in elder law and special needs law include a professional care manager, nurse, life care planner, social worker, physician, psychologist, tax preparer, appraiser, or investment advisor.   

The attorney who provides non-legal services must ensure that the client's rights derived from the client-attorney relationship, such as confidentiality, loyalty, communication, competent representation, diligence and avoidance of conflicts of interests, are maintained. When implementing non-legal services, the attorney should develop procedures with the selected non-attorneys that preserve the client's rights. Such procedures may include training non-attorneys on the attorney's  duties to the client and having the non-attorney agree in writing to maintain client confidences and disclose any potential conflicts of interest.  The attorney also should ensure that any non-legal services are specifically tailored to the client’s individual needs. 

Before involving a non-attorney in a client representation, the attorney should fully disclose to the client why the proposed service is recommended, the additional cost, if any, and how the attorney will ensure that the client's rights will be preserved. The attorney also should obtain the client's written informed consent to the non-legal services and should be advised if the non-legal service provider has any licensing or other obligations which could conflict with the attorney’s duties.  For example, a nurse could be a mandatory reporter of abuse, and exercise of this obligation could conflict with the attorney’s duty of confidentiality in some states.

Non-attorneys often provide valuable services that are nonlegal in nature. When a non-attorney is needed to assist with the legal representation, the attorney may: 

• Use a non-attorney in-house employee; or  
• Refer the non-legal services to an independent contractor. 

Before providing a non-legal service, especially through an in-house employee, the attorney should consider seeking the approval of the attorney's state bar ethics counsel and disclosing such service to the attorney's malpractice carrier. 

The attorney may provide non-legal services through a separate entity related to the attorney or the attorney's law firm, provided the attorney complies with the attorney's state bar ethics rules.  

These rules typically require that the attorney:  

• Ensure that the client's rights be preserved throughout the provision of the non-legal service; 
• Disclose to the client any relationship and any financial interest the attorney may have with the non-legal service; 
• Advise the client of the availability of similar non-legal services in the locality; 
• Advise the client of the client's right to seek independent legal advice; and 
• Obtain the client's written informed consent to the non-legal services. 

Example: The client, who has advanced dementia, could benefit from a geriatric care manager in order to live in the least restrictive setting. The attorney owns a 25 percent interest in a local geriatric care management company that could provide the services the client needs. Before referring the client to this company, the attorney should comply with the disclosure and consent requirements of the attorney's state bar ethics rules. 

The attorney may practice law and simultaneously engage in another occupation, including the selling of insurance or investment products, provided the attorney exercises adequate caution and complies with state bar ethics rules.  

As a result of the client-attorney relationship, the client trusts the attorney. This trust permits the attorney to influence the client. The attorney may not pressure the client to buy an insurance or investment product.  

Most state bar ethics rules consider the attorney's act of selling an insurance or investment product to a client a business transaction with the client that imposes certain requirements on the attorney.

State bar rules typically require that: (a) the proposed sale be fair and reasonable to the client; (b) the terms of the sale be fully disclosed to the client in writing; (c) the client consent in writing thereto; and (d) the client have a reasonable opportunity to seek the advice of independent legal counsel. Some state bar rules impose greater requirements on the attorney and some lesser.

Example: The attorney is asked to provide estate and asset protection planning for the client. The client is in good health and has a $400,000 IRA that the client wants to protect if nursing home admission occurs. Long-term insurance may be appropriate to protect the client's IRA. The attorney is licensed to sell long-term care insurance. Provided that the attorney's state bar ethics rules permit, the attorney fully complies with those rules, and the attorney is not pressuring the client, the attorney may sell the client long-term care insurance.