Monday, January 15, 2018

"Who is My Client?"

Here's a paradox.......

"An attorney's ethics are directly proportional to the number of ethical issues he encounters".

This is because the most ethically aware attorneys will SEE 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, and exams, 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 issues 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 question.......WHO IS MY CLIENT?

This 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".

3. 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.

5. 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 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 live there, and have not taken any action, until recently they began to inquire. The person who contacted you wants to be the fiduciary.

All these 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 the client?" and reconciling that with the appropriate ethical issues. Very often one CAN proceed but must (or should) obtain proper waivers from parties who could later criticize the conflict. Whether we get written waivers or not, prudence dictates documenting what we are doing and why.

Something 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 usually takes some work to untangle these initial ethical issues. Don't succumb to the temptation to ignore the issues.

A related paradox is -

"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 what I tell the potential client, because it's true is:  WE WANT A RESULT THAT WILL STAND  (sorting out the ethical stuff really boosts the success likelihood.  Most clients understand and appreciate this)

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