The following is example of how a typical client may arrive at the office of an elder law attorney:
Adult child discusses estate planning with parents at a family gathering. Parents determine it is time to update their documents to reflect life changes that have occurred. Adult child has been assisting parents with making appointments and transportation so adult child offers to call an attorney and schedule a consultation. Adult child calls and arranges an initial consultation to speak to an attorney. On the day of the consultation, adult child drives parents to the attorney’s office. Upon arrival, the attorney welcomes the family and they exchange pleasantries. When the attorney directs parents to the conference room, the attorney kindly asks that adult child wait in the waiting room until they are finished.
This scenario is not uncommon. The adult child may feel hurt, angry, or annoyed that they are not included in the consultation. After all, they did all of the work in arranging the appointment and transporting the parents. Adult children often believe this is especially proper if they expect to be named as fiduciary in their parents’ documents. If such a scenario occurs, the adult child should not feel hurt, but rather relief, that they have chosen an ethical attorney to meet with their parents.
There are several reasons why an attorney needs to meet with parents alone for at least part of any initial consultation. Attorneys are bound by certain ethical guidelines that make it difficult for non-clients (including family members) to be present during portions of the consultation. This article summarizes those ethical considerations (which are commonly referred to as the 4 Cs of Elder Law Ethics.
One of the most important tasks that an elder law attorney must do is identify the client. Most attorneys who do not practice elder law can do this fairly easily because the individual who initially contacts the attorney is seeking legal services related to a specific legal problem they personally are facing. The client is typically the individual whose interests are at stake or the individual signing documents. However, identifying the client can be slightly more difficult for an elder law attorney. The elder law attorney needs to determine whether the initial caller is seeking services for a loved one, for themselves, in their role as agent/fiduciary for a loved one, or for some other purpose.
Thing are further complicated when an adult child arrives with parents for a consultation and expects to be present during the meeting. If the adult child is present, it is common for them to interject in the conversation in an effort to speak on behalf of their parents. Rather than speaking directly with the client to establish goals and objectives, the attorney may find that the presence of the adult child makes it difficult to ascertain goals and objectives. The attorney is vulnerable to listening to the goals and objectives of someone who is not the attorney’s client. Further, the adult child may listen to the attorney’s advice and rely on such advice for their own circumstances. In such a situation, the elder law attorney may have created an “accidental” relationship that the attorney did not intend to create.
Identification of the client is most important because of the fiduciary duties an attorney owes to a client. If the attorney is incorrect as to the identity of his or her client or accidentally creates an unintended relationship with an adult child, then the attorney may inadvertently breach certain fiduciary duties owed to any conceivable client. By having an adult child wait outside during part of the consultation, it allows the attorney to quickly establish the identity of the client and to prevent establishing an accidental relationship with a family member.
Identifying the client is also important as it relates to the second of the 4 Cs: Conflicts of Interest. An elder law attorney needs to quickly assess whether any conflicts of interest exist between the attorney and the prospective client. Conflicts of interest occur when an attorney represents two or more individuals or entities with competing interests. The most common example of this is an attorney representing both parties in litigating a dispute. The attorney has a clear conflict of interest in that the attorney could not zealously advocate for one client without detrimentally injuring the other. Attorneys have an ethical obligation to avoid such situations.
In certain situations, attorneys can represent two individuals in the same matter if both parties have the same interests. This is commonly referred to as joint representation. Many elder law attorneys provide estate planning services to married couples. Such a relationship involves joint representation in that both spouses have separate, individual interests. However, spouses often have common estate planning interests.
As mentioned above, having an adult child present in during the consultation could create a situation where the attorney enters into an accidental relationship with a family member. The adult child may also be a former or future client of the elder law attorney. In either scenario, the elder law attorney may be faced with whether a conflict between the parents and the adult child exists. If the elder law attorney determined a potential conflict existed, the elder law attorney would need to assess whether the interests of the adult child were sufficiently similar to the parents or whether an unavoidable conflict arose. If an unavoidable conflict arose, the elder law attorney may need to withdraw from representing both parties. By having the adult child wait in the waiting room, it alleviates some of the concern related to conflicts of interest.
One of the fiduciary duties that an attorney owes to a client is the duty of confidentiality. A fundamental principal of an attorney’s relationship with a client is that the attorney must not reveal any information related to the representation without the consent of the client. Such an arrangement is vital to establish the trust that is the hallmark of the client-attorney relationship. When a client has such trust in their attorney, they are more likely to be forthcoming with information to the attorney. Only then can an attorney truly provide effective representation.
Having the elder law attorney meet alone with parents allows the elder law attorney to maintain the duty of confidentiality. While there may be certain exceptions to the general rule that the presence of a third party waives confidentiality with regard to that client, the presence of an adult child at best places the duty of confidentiality at risk because an attorney may be forced to disclose a communication that occurred between the attorney and client if a third party is present.
It should be noted that the duty of confidentiality may be waived by a client. In our example above, parents are free to waive confidentiality and request that adult child be present during the consultation. However, it is best for the elder law attorney to meet with the parents alone initially to discuss the concept of confidentiality so that the parents can provide informed consent to such waiver.
Finally, attorneys have special ethical responsibilities when it comes to representing individuals who may appear to have diminished capacity. Specifically, Pennsylvania Rule of Professional Conduct 1.14 requires that attorneys treat clients with diminished capacity with the same attention and respect that they would any other client. This means that an elder law attorney should treat every individual who receives a consultation the same, regardless of the prospective client’s capacity. Meeting with an individual alone will allow the elder law attorney time to determine the level of capacity of the prospective client. It will also allow the elder law attorney to get a sense of the goals and objectives of the representation and to determine what additional steps the attorney needs to take to ensure the attorney is treating the client with diminished capacity within the parameters of Rule 1.14. Often someone with diminished capacity is able to identify a problem and communicate things to the elder law attorney. The elder law attorney may need to obtain specific details such as account numbers, addresses, and phone numbers but the prospective client with diminished capacity can often present well enough to give the elder law attorney direction.
Having an adult child present during a consultation with an individual with diminished capacity makes it difficult for the elder law attorney to determine the level of capacity that a prospective client has. Often the adult child will interject with details or answers to an attorney’s questions if present. This makes it difficult for the attorney to determine the level of understanding of the prospective client. Further, meeting with the prospective client privately will allow the elder law attorney to determine whether there is any undue influence on the part of the adult child. Therefore, it is usually best for the elder law attorney to initially meet with the prospective client without the presence of the adult child.
As you can see, it may be frustrating to an adult child to be left out of an initial consultation with an elder law attorney. Despite the adult child’s involvement in a parent’s day to day activities, many complications can arise when a third party is present during a meeting with an elder law attorney. It is best for a prospective client to initially meet with an elder law attorney alone so that the attorney and client can freely discuss goals and expectations. Please keep in mind that if you are the one left in the waiting room, it is not personal. It may be in the best interest of your loved one.
By: Ryan A. Webber, Attorney