Who's on First?

• Year: 2025
• Citation: Vol. 48 No. 1 Pg. 22
• Pages: 22

Who's on First? No. Vol. 48 No. 1 Pg. 22 Wyoming Bar Journal February, 2025

by Kelly S. Davis

If your practice includes estate planning or elder law, there is one thing on which you can count eventually happening. Sooner or later, you will experience a reenactment of the Abbott &Costello "Who's on First" routine performed in your office. You step into your waiting room, expecting to greet a new client, the widow Mrs. Jones, a senior citizen who has come to see you about preparing a new will or a set of powers of attorney and there they are . . . Mrs. Jones and all of her children, or worse, half her children and their spouses. It's obvious they all want to see you about their mom. They may even say they need to sit in on the meeting because "they know what Mom wants!" It is obvious they think you can represent the entire family, but there are a few ethical considerations that you as a lawyer must first address.

Who Actually is Your Client?

Turning to the Rules of Professional Conduct, we see that when serving a client, the lawyer is charged with multiple ethical duties and responsibilities, but in the case described above, just who is that client? We need to know. In spite of their expectations, or their professed good intentions, it is unlikely that the entire family can be the client. Usually, too many potential conflicts exist to overcome the prohibition under W.R.P.C. 1.7(a) against serving multiple clients. It may be the possibility of Mom's future need for longterm care, or Junior's spending his inheritance before he gets it, or Sister Suzie seeking revenge for not getting the last piece of pumpkin pie at Thanksgiving in 1970 that create a conflict, and the attorney may not know about them until it is too late. We must proceed with caution, relying upon those ethical rules for guidance.

Estate planning and elder law lawyers, by the very nature of their practices, often encounter individuals with diminished capacity. When these meetings develop into an attorney/client relationship, either through the individual having sufficient capacity to retain the lawyer himself, or an attorney-in-fact or agent exercising his authority to hire a lawyer for the individual under a durable general power of attorney, those rules of ethics kick into effect.

Estate planning and elder law lawyers, by the very nature of their practices, often encounter individuals with diminished capacity. When these meetings develop into an...