Here's a paradox.......
"An attorney's ethics are directly proportional to the number of ethical issues he encounters".
is because the most ethically aware attorneys will SEE the issues as
they arise, while the ethically challenged will be unaware of the
problems they are about to encounter. I wonder how many law students
have taken an ethics course, or ethics exam, and thought, "This is all
academic; these things don't actually happen." Well, it's true in one
way.....real practice is WAY stranger, and much more ethically
challenging, than any law school exam. If your practice is presenting
you with ethical questions to resolve, you are not an unethical
attorney. More likely you are highly ethical, and your diligence will
serve you and your clients well.
At the core of many of these situations is a recurring ethical question.......WHO IS MY CLIENT?
arises in many contexts, but is especially prevalent in elder law,
estate planning, and estate administration. Here are a few examples:
1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.
2. A person calls you and inquires about your fees because "Mom wants to sell her house".
A person calls you regarding petitioning for guardianship for their
incompetent parent. Upon meeting the parent and adult child, you agree the person needs a
guardian, but you then receive a call from another adult child, stating
that the sibling you met with cannot be trusted with money.
4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.
Same scenario as #4, except when you meet the parent a second time, they
seem to have deteriorated mentally....Upon telling this to the two
children, the first one tells you that this is how it has been going,
and the second one tells you that the other child has not been giving
the parent their medication.
6. You are contacted by the child of a
person who died six years ago. There is no will. The person who
contacted you lives in the house owned by the decedent, and has lived
there his whole life. There are three other children who do not lived
there, and have not taken any action, until recently they began to inquire. The person who
contacted you wants to be the fiduciary.
scenarios are real. In fact, they are situations I have encountered in
the past year alone! These situations have one thing in common. One
cannot proceed until determining "who is my client?" and reconciling
that with the appropriate ethical questions. Very often one can proceed
but must (or should) obtain waivers from parties who could later criticize the conflict. Other times we may be able to proceed, but
prudence will dictate documenting what we are doing and why.
I always do if a parent and child are in my office, and I sense a "Who
is my client" situation.......I tell them that at some point I MUST meet
with the parent alone, and I mean ALONE, and that I am doing this for
their benefit. When I meet with the parent alone, I make very clear that
I am THEIR attorney, that we have attorney client privilege, that I
will not do anything they don't want, that they can call me on their own
if they wish, etc....and, I DOCUMENT MY FILE that I have had this
meeting. In some cases, I will ask an associate to sit in on the
meeting, and make notes as well. It is THAT important.
it takes some work to untangle these initial ethical issues, and
sometimes clients think you are working on a side issue and causing
there to be extra fees. So be it. Don't succumb to the temptation to ignore the
issues. Another paradox here....."the person who doesn't want you to
spend time resolving the ethical issue, is the one who really needs you
to resolve it". In estate planning matters, don't be afraid to ask
yourself "How is this going to look later?", and don't be afraid to ask
that person (client?) across the desk "How is this going to look
later?". I like being able to do right, and have it LOOK right, and have
a result that will stand.