New Hampshire Bar Journal
2005 Spring, 16.
Ethical Challenges in Representing Elderly Clients
New Hampshire Bar Journal Volume 46, No. 1, Pg. 16 Spring 2005 Ethical Challenges in Representing Elderly Clients Bar Journal Author - Attorney Nelson A. Raust
Representing elderly clients is both rewarding and challenging. Unlike many practice areas, however, the elder law practice presents a number of difficult ethical issues on a regular basis. Questions about client identification, diminished capacity, confidentiality and conflicts of interest often arise. Although these issues may not be complicated from an academic standpoint, they are difficult to apply in representing real clients. As the baby boomers age, most lawyers will face these issues regardless of their particular specialty. The purpose of this article is to review these issues, particularly focusing on the proposed New Hampshire Rules of Professional Conduct.
II. Client Identification: Who is the Client?
In representing elderly clients, it is not unusual for family members (generally the adult children) to make the initial contact with the lawyer. It is also not unusual for the adult children to attend and participate in the client meetings. Although the reasons vary from client-to-client, it is common for elderly clients to have little experience with lawyers, to be concerned that they will not understand the legal advice, to be concerned that their weakened physical or mental health may compromise their decision-making ability, and to want trusted family members to assist them with making difficult decisions. The lawyer, however, must be concerned with the possibility that the family members may by exerting undue influence over their elderly parent. Accordingly, it is important for the lawyer to identify who the client is at the outset of the representation, to determine who may participate in the representation, to communicate this clearly to the participants, and to ensure that the entire representation is consistent with these decisions.
Generally, the elderly individual will be the client. However, when meeting with a prospective client, the lawyer must first determine whether the elderly individual has the requisite mental capacity to establish an attorney-client relationship. Similarly, when meeting with an existing client, the lawyer must determine whether he or she still has the requisite mental capacity to continue with the attorney-client relationship. As stated in a treatise dealing with tax, estate and financial planning for the elderly, "[t]he client-attorney relationship is based on the premise that the client has the capacity to enter into and continue the relationship, and that the client can make informed decisions after consulting with her lawyer."(fn1) The American Bar Association Commission on Ethics and Professional Responsibility in a formal opinion stated, "[b]ecause the relationship of client and lawyer is one of principal and agent, principles of agency law might operate to suspend or terminate the lawyer's authority to act when a client becomes incompetent, and the client's disability may prevent the lawyer from fulfilling the lawyer's obligations to the client unless a guardian is appointed or some other protective action is taken to aid the lawyer in the effective representation of the client."(fn2) ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 96-404, cited in ABA/BNA Lawyers' Manual on Professional Conduct at 46 (1996) (footnotes and citations omitted).
The determination of whether a prospective or existing client is mentally competent to establish or continue with an attorney-client relationship can be complicated for a lawyer to make. Comment 6 to Rule 1.14 of the Model Rules of Professional Conduct(fn3) (hereinafter referenced as "the Model Rules") provides limited guidance; specifically, it states, "[i]n determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client."
The recently proposed revisions to the New Hampshire Rules of Professional Conduct (hereinafter referenced as "the proposed New Hampshire Rules") do not provide guidance on how to make the determination of whether a prospective or existing client is mentally competent to establish or continue with an attorney-client relationship.(fn4) It would seem reasonable to consider the guardianship standard, i.e., inquiring into the nature and extent of the individual's functional limitations and ascertaining his or her capacity to care for himself or herself, or his or her estate.(fn5) Alternatively, it might be reasonable to consider the testamentary capacity standard; specifically, does the client, "(1) understand the nature of the act of execution, (2) recollect what property he wishes to dispose of and understand its general nature, (3) bear in mind his relatives, and (4) elect and choose the disposition to be made of his property."(fn6)
Regardless of the appropriate standard, it is often difficult for a lawyer who may only meet with a client several times to determine competency. Comment 6 to Model Rule 1.14 provides that the lawyer may seek guidance from an appropriate diagnostician. According to the American Bar Association Commission on Ethics and Professional Responsibility's Formal Opinion 96-404, such a discussion of a client's condition with a diagnostician should not violate proposed New Hampshire Rule 1.6 (Confidentiality of Information), insofar as it is necessary to carry out the representation.(fn7) Because of the complicated nature of determining competency, it is often good practice to obtain a medical opinion on this issue when the lawyer is unable to make a reasonable determination on his or her own. If the prospective or existing client has the requisite mental capacity to...