Clifton B. Kruse, Jr.: Ethics, Professionalism, and NAELA

Clifton B. Kruse, Jr. was one of Elder Law’s founding fathers. He was a NAELA Fellow and NAELA’s eighth president. Clif was known and admired for his professionalism, high standards, fairness, and willingness to share. The Aspirational Standards for the Practice of Elder Law is his most enduring legacy.

Craig C. Reaves (NAELA president at the time of Clif’s death on December 30, 2008) wrote to NAELA members, “Clif was a consummate gentleman. Always impeccably dressed, always gracious towards others, always with time to answer a question, no matter how busy he was. Clif was a beacon for how to act honestly, ethically, and professionally as a lawyer.”

Here, several of those who knew Clif share their thoughts on how his professionalism and ethical standards affected NAELA and Elder Law.

Clifton B. Kruse Jr.: Clif Kruse’s Professionalism and Ethics Legacy: The Aspirational Standards

By Gregory S. French, CELA

Four years ago, NAELA adopted Clif Kruse’s most enduring legacy to the practice of Law: The Aspirational Standards for the Practice of Elder Law. NAELA makes support of these Standards a condition for being a NAELA member.

The Aspirational Standards build upon and supplement each state’s professional responsibility rules that mandate the minimum requirements of conduct for attorneys to maintain their licenses. Attorneys who aspire to and meet these Standards elevate their level of professionalism and enhance the quality of service to their clients.

As demonstrated below, the Standards are a best practice guide to meeting the legal needs of older persons and persons with special needs:

  • Identify who the client is at the earliest possible stage and communicate that determination to the persons immediately involved.
  • Meet with the identified prospective or actual client in private at the earliest possible stage.
  • Utilize an engagement agreement that, among other things, identifies the client, describes the scope and objectives of the representation, and sets out the fee arrangement.
  • Oversee the execution of documents that directly affect the interests of an individual only after establishing an attorney/client relationship with that individual.
  • When representing multiple family members, ensure that the family members understand who the clients are.
  • Accept payment of client fees by a third party only after determining that the payment will not influence the attorney’s independent judgment.
  • When representing a fiduciary, ensure that the fiduciary understands that the duties of the fiduciary and the attorney are governed by the known wishes and best interest of the principal.
  • Carefully explain the obligation of confidentiality to the client and any family members as early as possible.
  • Strictly adhere to the obligation of client confidentiality, even when in contact with family members or caretakers.
  • Approach clients in a holistic manner.
  • Respect the client’s autonomy and right to confidentiality even after the onset of diminished capacity.
  • Develop and utilize appropriate skills and processes to make and document client capacity.
  • Adapt the interview environment, timing of meetings, communications, and decision-making processes to maximize client capacity.
  • Protect the client when the attorney believes that the client has diminished capacity, is at risk of substantial harm, and cannot adequately act in the client’s own interest.
  • Recommend guardianship or conservatorship only when all possible alternatives will not work.
  • Maintain direct communication with the client, even when the client chooses to involve others.
  • Counsel the client regarding asset preservation strategies in light of the client’s needs, personal values, and alternatives available.
  • Consider the potential vulnerability to undo influence of the intended audience for any marketing communication.
  • Disclose in writing to any client receiving ancillary services the relationship between the attorney and any separate entity, including any financial interest of the attorney.
  • Provide annually at least 50 hours of pro bono legal services.

Clif practiced all the above. So should we.

Gregory S. French, CELA, chairs NAELA’s Professionalism and Ethics Committee and serves as NAELA’s Treasurer.

Clifton Kruse — The Epitome of Professionalism

By A. Frank Johns, CELA

Whether it was his image and appearance, his invitational approach and political diplomacy, or his Elder Law counseling and practice, Clifton Kruse epitomized professionalism. Wherever Clifton was, he “dressed up” for the occasion. He struggled with the current “business casual” attire, believing that meant to wear a blazer and slacks rather than a suit. I cannot remember any NAELA event where Clifton wore jeans. With his silver hair, dapper style, and his lovely wife Carolyn by his side, he really looked professional.

Clifton’s professionalism showed not just in his appearance, but in his demeanor and relationship as well. His soft, pastoral approach defused countless situations that could have resulted in confrontation. During his tenure as NAELA president, the Board was often locked in debate. At times when the debate would escalate along with tempers, Clifton would redirect the individuals involved, moving to consensus.

Clifton’s professionalism was most visible in his practice of Elder and Trust law, his lectures and writings for our benefit and his perceived legal boundaries when it came to marketing and ancillary and related services and products. An ordained Methodist minister, Clifton served his clients as if they were his parishioners. He was constantly visiting his clients at home or in institutional environments. He shared so many of those experiences with us in his NAELA News regular column, “The Peripatetic Essayist,” and in his book Selma’s Cat (NAELA 2004).

He was the first to take manuscript writing for NAELA events to a higher academic level. He coupled his writing with his exceptional teaching and lecturing. In 1993, at the NAELA Institute in St. Louis, he received a standing ovation for his lecture on self settled trusts and the impact of OBRA ’93 with its new regulations related to special needs trusts. His manuscript for that session became the broader ABA publication on self settled trusts that was so popular it was in its fourth edition when Clifton stopped writing.

If there were differences with Clifton’s professionalism, it was that he was too “old school.” He wrote his manuscripts on legal pads, and never became “user-friendly” with computers, the Internet, cell phones, and all the technology that has come with the 21st Century. Not surprising, he loathed practice development that promoted newspaper advertizing, Yellow Pages marketing, 800 numbers, radio, TV, seminars, and such. Even more, he said he could not possibly understand how attorneys could or would sell insurance, offer securities and investment products, or have nurses, doctors, and psychologists on staff in their law firms. He was absolutely certain that no waivers or disclosures could eliminate the conflict of interest or the appearance of impropriety.

While Clifton differed with his friends and colleagues, he never imposed his position on them. He simply chose to attend sessions that dealt with other areas of practice. When the whole NAELA conference program in Seattle (1992) was primarily devoted to practice development, Clifton found that he had another engagement and went off with his wife Carolyn to an International Ice Skating competition where she was one of the coordinators for the U.S. Ice Skating Team.

A. Frank Johns, JD, CELA, LLM in Elder Law, Stetson University College of Law, is a principal in the firm of Booth Harrington & Johns of North Carolina, PLLC, Charlotte and Greensboro, N.C.

The Lone Ranger and Lawyer Advertising

By Alex L. Moschella, CELA

I first met Clif Kruse in my capacity as the second president of the Massachusetts NAELA Chapter over 20 years ago, as I drove Clif to Cape Cod to participate in our Chapter retreat. That is the day I met my boyhood hero, the Lone Ranger, in person. I grew up watching the Lone Ranger, an American icon of righteousness, just like Clif is to the NAELA family. The Lone Ranger embodied good overcoming evil. The Lone Ranger was impeccable in dress, manners and speech. He was grounded in wisdom and strength of character and always spoke the simple truth. I found myself in the presence of a person of extraordinary powers, just like the Lone Ranger. Clif spoke of the spiritual nature of our work in Elder Law with the compelling force of his divinity training.

The Lone Ranger did not seek out people who needed help. They simply found him and he always helped them. Clif found the need for discussions on marketing, advertising, and practice development difficult to understand. It was Clif who influenced me to present my first session at a NAELA conference on the topic of the use of “trade names” in an Elder Law practice. At the time, I was practicing under the firm name Metro Elder and Disability Law Associates (MEDLAW) in the Boston area. Coincidentally the founding member of our Massachusetts Chapter, Harry Margolis (an active marketing force in his own right on a state and national level), was also operating under a trade name, Elder Law Services. (Since then we both have abandoned such trade names as restrictive and not capturing the wide range of services we offer in the field of Elder Law today.) Clif’s concern with trade names was simple: “How does the public know we are lawyers?”

Now as an aging baby boomer in the twilight of my Elder Law career, I continue to compete in the Greater Boston Elder Law market and am fascinated by what our “competitors” are doing in the area of marketing, advertising, and practice development. I ask myself the question that many of us who had the great fortune of having Clif touch our lives often ask: “What would Clif think?”

Actually, the Lone Ranger made his views known to me quite clearly throughout his prolific involvement with NAELA. I characterize these views as total indifference but with intellectual curiosity and support of others’ opinions on the subject. Clif never stifled discussion on these concepts that were alien to him. He chose, instead, to be at the forefront of the Task Force on Professionalism and Ethics. It was through Clif’s influence that I became actively involved in this Task Force and subsequent NAELA efforts related to ancillary services and multidisciplinary practice.

The world of lawyer advertising and marketing was, to Clif, a world in which he did not wish to travel. His great intellect and leadership abilities drove him to understand these developments and NAELA members’ interests only in the context of the Professional Rules of Responsibility. What else would you expect of the Lone Ranger: he played by the rules.

Clif was fascinated by NAELA members who distributed pens with certain slogans or messages. I now collect any and all lawyer pens with any positional statements as a form of hobby due to Clif’s curiosity on the subject of Elder Law pens for distribution to clients, indeed a mild form of advertising our services.

Clif pushed us to higher aspirational standards in all ­areas and his formula for success was to do well by being the best lawyer you possibly could be. Clif was not impressed with the special designations such as CELA. Cliff was a “lawyer’s lawyer,” always studious, diligent, deliberate, and able to wax eloquent when he spoke. He viewed preparation and drafting as the hallmark of a lawyer, and diligent study and analysis as what separates us from other professions. He took great pride in being a craftsman and draftsman.

I now tend to find my boyhood hero influencing me far more as ad campaigns that focus on protection for nursing home elders are full of puffery and boorishness, pedantic and self-serving statements that do not capture the noble calling of what we do for spousal protection for the most vulnerable and needy clients that we are privileged to serve. I once discussed with Clif that “we cannot hide our light under a bushel,” in an effort to match his profound allegories. His response, like the Lone Ranger, was simple: “Just do good.”

Those of us touched by Clif’s contribution to professionalism and ethics within NAELA realize the contribution this giant of a man made to our generation of Elder Law attorneys throughout the country. It is now up to us to influence the next generation of Elder Law attorneys to understand the changing dynamic and nature of our practice as we attempt to redefine and broaden our services to serve baby boomers and other groups of clients that traditionally were not captured under the net of Elder and Special Needs law. The Aspirational Standards that Clif set out to establish at NAELA are now a remarkable testament to the strength of his character and mission to make us better lawyers. Clif’s silver bullet that he always left behind like the Lone Ranger was simple: good service speaks for itself.

Alex Moschella, CELA, served on the Professionalism and Ethics Task Force and chaired the Task Force on Multidisciplinary Practice. He is a NAELA Fellow and a past member of the Board of Directors. He is a partner in the Somerville, Mass., law firm of Moschella and Winston, LLP, is an adjunct faculty member at Suffolk University Law School in Boston where he has taught Elder Law for 15 years, and serves on the Board of Directors of the Massachusetts Alzheimer’s Association.

Clifton Kruse

By Stuart D. Zimring, Esq.

Clifton Kruse was the first speaker I ever heard at a NAELA event. He changed my life. Literally. In that one session he confirmed for me that I wasn’t crazy in perceiving the practice of law, and the practice of Elder Law in particular, as a very special calling. That there was at least this one other special individual out there who saw the legal world as I did.

It wasn’t long before I discovered that I wasn’t alone. There were other lawyers, both in and out of NAELA, who viewed him in the same way.

We’ve been asked to share how Clifton brought his perspective in ethics and professionalism to the practice of Elder Law, Special Needs Law, and NAELA. As an American College of Trust and Estate Counsel (ACTEC) Fellow, I can add ACTEC to that list as well. The answer to the question is deceptively simple and maddeningly complex. He did it by simply being Clifton. He did it by example. Clifton didn’t need to “lecture” about ethics or professionalism. It was simply who he was. When you listened to him, whether it was in a formal setting or, as I remember at one conference, sitting with him in his hotel room with at least a half-dozen different legal pads and pencils spread out around the room, each one an article or a sermon in some stage of writing, re-writing, or editing, it didn’t matter what you thought the two of you were talking about — it was always about professionalism and ethics. Always. Clifton simply didn’t know any other way to live or practice. And there were no shortcuts.

I remember having a spirited discussion with Clifton about attorney advertising. Clifton and I agreed that it was not “professional”; that having offices of Jacoby and Myers in department stores was not how we envisioned the practice of law. But I was a bit more laissez faire about it — if that’s what other lawyers wanted to do, and it was permitted by the applicable Rules of Professional Conduct, I didn’t have to do it. If it didn’t violate the Rules, what others did was not my concern.

Well that certainly set Clifton off! Of course it was my concern! I should be constantly seeking to elevate the profession. It was not a “job” or a “business” — it was a profession and anything, anything at all that detracted from that fact was anathema to Clifton. And he was right. And he still is. As I watch the continuing “bussinessfication” of the practice, I remember Clifton’s intense but quiet voice admonishing me and I redouble my efforts, at least in my office, in my practice, to always remember that the practice of law is a profession; is a calling.

And for that I will be ever thankful for having had the privilege to know Clifton, as his student and his peer.

Stuart D. Zimring, CAP, N. Hollywood, Calif., is a NAELA Fellow and a Past President.

What Would Clifton Think?

By William J. Browning, CELA

I had the good fortune of knowing Clifton Kruse. Like many of us who knew Clif, when faced with an ethical question I often ask, “What would Clif do?” Recently, I was thinking about how far NAELA has come. NAELA is now 21 years old. The NAELA of today is very different from the NAELA of 1988. NAELA has not only matured, it has grown and endured the growing pains of that maturation. NAELA, like all of its constituent members, has enjoyed good times, been blessed with great times, and endured times not so great. While marketing and practice management are important for the growth and survival of our practices, the intensive focus and momentum of this component of NAELA made me ask, “What would Clifton think?”

Practice Development vs. Professional Growth

The SEC is prosecuting a former NAELA member in Georgia for allegedly running a Ponzi scheme that defrauded approximately 140 clients out of approximately $40 million.

Two other lawyers were recently suspended from the practice of law because of allegations of charging excessive fees and allegedly lacking competence to practice in the area in which they have chosen. One of those lawyers was a NAELA member. Those lawyers were allegedly working together to market to seniors.

The NAELA Practice Management/Practice Development Section is the second largest NAELA Section. NAELA and some ancillary professional groups founded by members of NAELA develop and promote marketing materials to help members grow their practice. I received a number of proposals from marketing firms in 2009 offering to increase dramatically my law firm’s profitability with less work.

What would Clifton make of these developments? Clifton believed that the practice of law was a calling much like the ministry or medicine. Deduction would hold that the practitioners referenced in the previous paragraphs had an apparent focus on marketing and profitability in stark contrast to the higher calling espoused by Clifton Kruse. Are these practitioners the exception, or was Clifton the exception?

Clifton would not first leap to criticize those who are engaged in these practices, but rather would look to leadership including the leaders of the ancillary organizations and the NAELA Board of Directors, the Executive Committee, and past presidents and ask if we are offering the leadership necessary to promote the profession and its higher purposes. I believe that Clif would say that you must lead by example; after all, it is the very definition of leadership. I think Clifton would ask the leadership to focus on improving the actual practice of Elder and Special Needs Law and less on practice development, more on substance and academic writing and less on pithy advertising and marketing plans. Clif would not look fondly on “tool boxes” which offer better advertising and promising a “higher yield” of seminar attendees. While many who advertise claim that they are simply offering “education” to the public, Clifton would cut right through the froth and suggest that the best promotion for one’s business is to represent clients to the greatest of their ability and that the attorney’s worth and value is then evident for all to see. Catchy phrases, better seminar materials, and enticing snack selections for seminars were not part of Clifton’s vision of professionalism. Clifton would say that we should be better than time-share salespeople offering free vacations in exchange for 30 minutes of attendance at an education seminar.

Clifton might suggest that we should look to and heed the cautionary tales of bankers acting as stockbrokers, security firms dabbling in banking, creating toxic assets, and the entanglement of auditing and accounting services that gave fertile ground for debacles such as the Enron implosion. Clifton might suggest that these cautionary tales should remind us that the lawyer’s traditional values and role should be celebrated and protected and not be burnt offerings at the altar of marketing and profitability. Clifton would correctly assess that if allegations against the attorneys referenced above were true, that they have sacrificed not only their traditional roles and values as attorneys but violated and exploited the sacred trust of their clients.

Many NAELA members are also selling insurance and managing client monies in “multidisciplinary” practices. I have spoken to several NAELA members engaged in this practice; these members have advised that commissions from annuity sales generate more of their income than the traditional practice of law.

Clifton realized and expressed so exquisitely in his book, Selma’s Cat, the vulnerable nature of our client base and the role of the classic lawyer advocate. There are no stories in Clifton’s book about perspective clients being wooed at seminars or wonderful attorneys who sold these vulnerable clients insurance products with a 10 percent commission.

Who Are We?

We must ask ourselves, individually and as an organization, “At this juncture, is NAELA a trade association or a professional organization?” Unfortunately, based upon the overwhelming interest in marketing and the lack of interest in academics, I believe that NAELA is at risk of becoming a trade association and is quickly losing its identity as the premier organization for Elder Law and Special Needs attorneys, which offered superb education to its members and which fostered debate and academic growth.

What would Clifton think of multidisciplinary practices? Clifton and I discussed multidisciplinary practices on many occasions and he was steadfastly opposed to the concept. He suggested that if you garner most of your income on the sale of insurance products, that you are an “insurance man” and not really a lawyer. Clifton honored the traditional role of a lawyer, believed that it was a high calling, and deserved a practitioner’s respect and devotion. Clifton’s beliefs are certainly traditional and “old school” and unfortunately, it appears that the numbers of lawyers sharing Clif’s beliefs are dwindling.

Achieving Balance

While the Clifton B. Kruse Jr. Annual Ethics Luncheon is a compliment to Clifton’s memory, a more fitting tribute would be reconsideration of the organization’s focus and rethinking the membership criteria, which should stem the tide of indictments and disbarments.

While it is apparent that we must make potential clients aware of their rights and our services for the survival of our practices and for the education of the population we serve, finding the right balance will not be easy. We need to find ways to promote our services in ways that do not exploit and victimize our potential client base. Indeed, we must be profitable; if we did not earn money to do what we do, we would stay home and play with our children. Nevertheless, we cannot make our livings while exploiting the trust of our clients. Who among us can honestly say that there is no temptation to suggest a particular financial product more than another product or planning device when one brings in substantially more profit?

There are significant differences in what is ethically permissible and what Clifton viewed as appropriate for the profession that he loved. Clearly, offering seminars is ethically permitted, even if it is unprofessional. Those in personal injury practices are known as “ambulance chasers” and are protected even if they diminish the reputation of attorneys. Has NAELA created a class of ambulance chasers?

The ABA-developed Model Rules of Professional Conduct provides in Section 7 restrictions that are not difficult to meet. Section 7 contains basic guidelines about information about legal services, including advertising and communications about a lawyer’s services. Although the ABA has spent over 100 years developing what are now the model rules of professional conduct, compliance with these rules is simple if not intuitive. If the profession as a whole cannot adhere to this portion of the model rules, those “ambulance chasers” in our area of practice will benefit, while the overall quality of the practice, the level of congeniality between lawyers and improved reputation in our communities will suffer.

While Clifton no longer walks among us, I’d like to think that Clifton’s voice and leadership still resonate throughout NAELA. I’d like to think that engaging in debate about the future of our practices, and focusing on improving the profession to the enrichment of our clients, will allow Clifton’s voice to be heard for generations to come.

William J. Browning, CELA, Columbus, Ohio, is a NAELA Fellow and a Past President.