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Presentation on theme: "T WEAKING THE E LDER L AW P RACTICE TO A CHIEVE THE H IGHEST P ROFESSIONAL S TANDARDS Clinical Professor Kate Mewhinney, CELA Wake Forest University School."— Presentation transcript:

1 T WEAKING THE E LDER L AW P RACTICE TO A CHIEVE THE H IGHEST P ROFESSIONAL S TANDARDS Clinical Professor Kate Mewhinney, CELA Wake Forest University School of Law February 27, 2009

2 These materials were part of a Continuing Legal Education program of the North Carolina Bar Association Foundation. They are reprinted with the express permission of the North Carolina Bar Association Foundation. All rights reserved. Kate Mewhinney, CELA

3 A SPIRATIONAL S TANDARDS Adopted in 2005 by the National Academy of Elder Law Attorneys (NAELA). Drafting committee of experienced elder law attorneys, including A. Frank Johns of Greensboro, a former NAELA President. Non-binding recommendations. Reviewed from various perspectives in the NAELA Journal, Vol. II, No. 1 (2006). Kate Mewhinney, CELA

4 The NAELA Standards and other elder law ethics resources, such as the ACTEC Commentaries and pertinent NC ethics rules and opinions, are assembled on the website of The Elder Law Clinic of Wake Forest University School of Law in the Resources Section. Kate Mewhinney, CELA

5 T OPICS C OVERED B Y NAELA A SPIRATIONAL S TANDARDS A - Client Identification B - Potential Conflict of Interest C - Confidentiality D - Competent Legal Representation E - Client Capacity F- Communication and Advocacy G - Marketing H - Ancillary Services I - Public Service Kate Mewhinney, CELA

6 O UR P LAN F OR THE H OUR Review the “Standards” – esp. A to E. Reference NC ethics rules/ opinions. Go over a few hypotheticals. Consider some practical steps to implement these standards. Kate Mewhinney, CELA

7 S TD. A – C LIENT I DENTIFICATION Gather all information and take all steps necessary to: identify who the client is at the earliest possible stage and communicate that information to the persons immediately involved. Kate Mewhinney, CELA

8 Meet with the identified prospective or actual client in private at the earliest possible stage so that the client’s capacity and voice can be engaged unencumbered. If you determine that it is clearly not in the best interest of the client to meet privately with the client, you take other steps to ensure that the client’s wishes are identified and respected. Kate Mewhinney, CELA Std. A – Client Identification

9 Oversee the execution of documents that directly affect the interests of an individual only after establishing a attorney-client relationship with the individual. Kate Mewhinney, CELA Std. A – Client Identification

10 H YPO #1 Huey, Dewey, & Louie make an appointment with you to discuss their Uncle Donald. They share that he has begun to show signs of dementia and inquire about a Durable Power of Attorney. Kate Mewhinney, CELA

11 Q #1: W HO IS YOUR CLIENT ? A.Nephews – they’re the ones in my office and to whom I’m giving advice. B.Uncle Donald – he’s the one we’re talking about and who will benefit from the advice. C.Grandpa Walt – he’s the one who is really in charge of Donald’s financial affairs. D.No one – the nephews are all minors. Kate Mewhinney, CELA

12 A lawyer may not prepare a power of attorney for the benefit of the principal at the request of another individual or third-party payer without consulting with, exercising independent professional judgment on behalf of, and obtaining consent from the principal. [2003 FEO-7, available on the NC State Bar website or at] Kate Mewhinney, CELA N.C. Ethics Opinion relevant to Std. A Uncle Donald is the Client!

13 THE C OMMENTS T O S TD. A Determining who is the client and meeting privately isn’t always easy. It is necessary to identify the client so you know whose interests are being addressed. It clarifies to whom you owe a duty of competence, loyalty, and confidentiality. It clarifies what steps can and cannot be taken, if the client is not present at initial interview. Kate Mewhinney, CELA

14 Consider an intake form or staff training to first ask “For whom or for whose interests are legal services requested?” Consider sending a copy of the ABA’s “Understanding the Four C’s of Elder Law Ethics” to the person who made the appointment. Also have it in your lobby and on your website. A sample is in your materials. For copies, contact or print it from Kate Mewhinney, CELA Comments to Std. A

15 If it is clearly not in client’s best interest to meet privately with you: Explain benefits of a private meeting (e.g., documents and decisions less likely to be the subject of a challenge). Note indications of discomfort by the client or influence by relatives. Note the content and tenor of comments, how supportive or dominating the relatives are. Kate Mewhinney, CELA Comments to Std. A

16 Note how consistent or inconsistent the client’s stated objectives are with prior wishes evidenced by estate planning documents or other expressions of intent. Nevertheless, should meet at least once with the client, alone, before the end of representation. [Learn the elements of an “undue influence” claim and consider the ramifications of your clients, you and your staff being subpoenaed in a future challenge to your client’s actions. KM] Kate Mewhinney, CELA Comments to Std. A

17 E VEN I N THE “C LOSEST ” RELATIONSHIPS Y OU MUST PROTECT T HE C LIENT. Undue influence can exist in a loving, long-term marriage. Undue influence doesn’t require bad motives and may be exerted by a person with the best of motives. See In re Will of Jones, 12/12/08, N.C. S.Ct., where the wife and the testator had been married for 47 years. Ct. of App. is reversed; case sent back for trial on issue of wife’s undue influence. 1.pdf 1.pdf Kate Mewhinney, CELA

18 S TD A – C LIENT I DENTIFICATION AND J OINT R EPRESENTATION When is “joint representation” appropriate and how should it be handled? NAELA Standards and criticisms of it follow…. Kate Mewhinney, CELA

19 S TD. A ON J OINT R EPRESENTATION If joint representation is appropriate (see Rule 1.7 and Std. B), give the clients a letter or agreement providing for waiver of confidences. Clarify that: All information will be available to all joint clients. In the event of a conflict between joint clients, the attorney must resign. A joint representation letter is especially important if the clients have blended families. Kate Mewhinney, CELA Comments to Std. A

20 Some attorneys favor a “family approach” or “communitarian approach” to elder law consultations. The NAELA Stds A and B accept it quite broadly. Others criticize this as a “feel good” approach that works well for most cases but not for those that go awry. “An Estate Planner’s Perspective of the NAELA Aspirational Standards” by Jeffery N. Pennell, Esq., NAELA Jl., supra, at 95. Kate Mewhinney, CELA NAELA APPROACH TO J T R EP C RITICIZED

21 “Blended family situations [are] when the train wreck is most likely to occur! This [NAELA Std. A3] deserves a careful, critical, and mostly cynical evaluation.” No real mention of the relative merits of the concurrent separate representation alternative. Clients won’t confide under a “share all secrets” arrangement. Kate Mewhinney, CELA Pennell, supra, at 101-102.

22 C RITIQUE BY THE A MERICAN C OLLEGE OF T RUST AND E STATE C OUNSEL (ACTEC) Consider holding a separate interview with each prospective client, which may allow the clients to be more candid and, perhaps, reveal conflicts of interest that would not otherwise be disclosed. [“What We Learned by Comparing the ACTEC Commentaries to NAELA’s Aspirational Standards,” Ottaway, C. and Bennett, C., NAELA Jl, supra, at 114.] Kate Mewhinney, CELA

23 C OMPARE Std A: Engagement letter should provide for waiver of all confidences in joint representation. However, the Comment says the letter should also provide that in the event of a conflict between joint clients, the attorney must resign. Versus ACTEC Commentaries allow the attorney to: withhold information, share information, or withdraw, as the lawyer deems best under the circumstances. Kate Mewhinney, CELA Ibid, at 111-112.


25 Did the N.Y. attorneys malpractice when they drafted the burden-on-the-residue tax payment provision that bankrupted the probate estate with the tax generated by a specific bequest of out-of-state realty the lawyers did not know existed, to a beneficiary who they also knew nothing about? No? Because the attorneys did not know about the paramour or about the Montana ranch? WHY DID THEY NOT KNOW? [Pennell, ibid.] Kate Mewhinney, CELA

26 Std A – Client Identification – and the Client With Diminished Capacity Kate Mewhinney, CELA

27 NC R ULES R ELEVANT TO S TANDARD A When a client's capacity to make adequately considered decisions in connection with a representation is diminished, … the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Rule 1.14(a). See also Std. E – Client Capacity. Kate Mewhinney, CELA

28 Selected comments to N.C. Rule 1.14(a) [2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. Kate Mewhinney, CELA N.C. Rule 1.14 and Std. A

29 [3] The client may wish to have family members or other persons participate in discussions with the lawyer. …. [T]he lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client's behalf. Kate Mewhinney, CELA N.C. Rule 1.14 and Std. A

30 T HE F LIP S IDE OF W HO ’ S THE C LIENT : W HO ’ S NOT THE C LIENT ? Once you’ve identified the client, then what? See N.C. Rules 4.3 and 1.18. Kate Mewhinney, CELA

31 D EALING W ITH U NREPRESENTED P ERSONS – R ULE 4.3 Do not state or imply that you are uninterested. When you know or reasonably should know that the unrepresented person misunderstands your role in the matter, you shall make reasonable efforts to correct the misunderstanding. Comment: Unrepresented people might assume that the lawyer is a “disinterested authority on the law.” Kate Mewhinney, CELA

32 D UTIES TO P ROSPECTIVE C LIENT Issue: What if the older person’s relatives come to see you about that person, without bringing him/her, and it later turns out the family really isn’t in complete agreement? Of course, try to avoid this by having a policy of asking that the older person come in first! Kate Mewhinney, CELA N.C. Rules relevant to Std. A

33 “A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. [….] If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.” Comment 5 to N.C. Rule 1.18, “Duties to Prospective Client.” Kate Mewhinney, CELA

34 NC A LLOWS FOR “M IRANDA WARNING ” I, [Daughter], understand that Attorney does not represent me regarding issues that concern my mother. I understand that Attorney may be representing my mother after Attorney meets with her. I also understand that whatever I say to Attorney may be used against my interests by Attorney in her representation of my mother. I understand I could hire my own lawyer and I have chosen not to do so. I have read this document and understand its contents. Kate Mewhinney, CELA Ethics Opinion 2003 FEO-7, Inquiry #4 (emphasis added)

35 PRACTICE TIPS 1. Identify the client – out loud, in writing, and to all involved parties 2. Meet alone with the client 3. Don’t imply to relatives that you’re uninterested. 4. Consider the “Miranda warning” when the older person’s relatives come in to see you first. Kate Mewhinney, CELA

36 Analysis: 1. Review of basic NC rule on conflicts. 2. What do the NAELA Aspirational Standards recommend? 3. What do the NC Rules and NAELA Stds say about 3 rd party payment of fees, if you even allow that practice? Kate Mewhinney, CELA S TD. B– P OTENTIAL C ONFLICT OF I NTEREST

37 N.C. R ULES R ELEVANT TO S TD. B Rule 1.7 provides that (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. …cont’d… Kate Mewhinney, CELA

38 (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. Kate Mewhinney, CELA N.C. Rules relevant to Std. B regarding Conflicts

39 When representation of multiple clients in a single matter is undertaken the consultation shall include explanation of: the implications of the common representation and the advantages and risks involved (including foreseeable conflicts of interest). Kate Mewhinney, CELA Std. B – Potential Conflicts of Interest

40 T RANSLATING THIS STUFF TO THE I NTERGENERATIONAL CLIENT GROUP I have yet to find an example of this. How do you explain this – the pros and cons, implications and risks, predictions and potential costs? Is it realistic to say that an older client has fully understood and freely consented to joint representation, if it is difficult for us to explain these issues? What if the parent is at all impaired, depressed, or dependent on the relatives who brought them to you? Kate Mewhinney, CELA

41 If representing multiple family members, ensure that they understand who are the clients and whether the representation is Joint (i.e., confidences are shared) or Separate. These situations can easily produce misunderstandings among family members, so education is important. Kate Mewhinney, CELA S TD. B – P OTENTIAL C ONFLICTS OF I NTEREST

42 Treat family members who are not clients as unrepresented persons but accord them involvement in the client’s representation so long as it is: consistent with the client’s wishes and values, and the client consents to the involvement. Kate Mewhinney, CELA NAELA Std B regarding Conflicts

43 Kate Mewhinney, CELA Accept payment of client fees by a 3 rd party only after…. 3 rd party payment of fees. Rule 1.8(f), restated in NAELA Standard B.

44 Kate Mewhinney, CELA determining that this won’t influence your independent judgment on behalf of the client, informing the client who consents to the payment by a third party, and ensuring that the parties understand and agree to the ethical ground rules for 3 rd party payment, which are….

45 Kate Mewhinney, CELA ….. Non-interference by the payor, Independence of judgment by the attorney, & Confidentiality. 3 rd party payment of fees, cont’d. Rule 1.8(f)/ Std. B.

46 Kate Mewhinney, CELA Or, just say….. NO!

47 H YPO #3 Zsa Zsa from Wysteria Lane meets with you for estate planning. She is currently in her fourth marriage. Her husband does not join in the consultation, but she states that he will come to the next meeting. Kate Mewhinney, CELA

48 Q #3: C AN YOU REPRESENT BOTH ? A.Yes; joint representation of married spouses is permitted, especially in estate planning. B.Maybe; provided both parties understand and consent. C.No; this is unwise, especially in multiple marriage situation. D.Never represent a housewife from Wysteria Lane. Kate Mewhinney, CELA

49 P RACTICE T IPS FOR W HEN J OINT R EPRESENTATION IS A UTHORIZED 1. Review the rule on conflicts of interest. 2. Obtain informed consent of both/all parties. 3. Execute a joint representation agreement, or confirm the agreement in writing, if appropriate. Kate Mewhinney, CELA

50 S TD. C - C ONFIDENTIALITY Carefully explain the obligation of confidentiality to the client and involved parties as early as possible in the representation to avoid misunderstanding, and to ascertain and respect the client’s wishes regarding the disclosure of confidential information. The release of confidentiality should be placed in writing. Kate Mewhinney, CELA

51 N.C. R ULES RELEVANT TO S TD. C - D UTY OF C ONFIDENTIALITY A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Kate Mewhinney, CELA N.C. Rule 1.6(a) - excerpt

52 P RACTICE T IP ON C ONFIDENTIALITY Consider including this is engagement letters or retainer agreements: You indicated that this office could release any information you provided me to [state name and relationship of person(s); ex.: your daughter, D.D. Jones], if I determine that this would be in your best interests. Reminds you to be explicit about disclosure issues. Kate Mewhinney, CELA

53 S TD. D – C OMPETENT L EGAL R EPRESENTATION Recognize the special range of client needs and professional skills unique to the practice of elder law and hold yourself out as an “Elder Law Attorney” only after ensuring your professional competence in handling elder law and disability related matters. Kate Mewhinney, CELA

54 Approach client matters in a holistic manner, recognizing that legal representation of clients often is enhanced by involvement of other professionals, support groups, and aging network resources. Practice tips: Establish formal or informal relationships with social workers, psychologists and other elder care professionals to best serve the client’s legal needs. Std. D – Competent Legal Representation

55 S TD. E – C LIENT C APACITY Respect the client’s autonomy and right to confidentiality even with the onset of diminished capacity. Develop and utilize appropriate skills and processes for making and documenting preliminary assessments of client capacity to undertake the specific legal matters at hand. Kate Mewhinney, CELA

56 Adapt the interview environment, timing of meetings, communications and decision-making processes to maximize the client’s capacity. Take appropriate measures to protect the client when you reasonably believe that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interest. Kate Mewhinney, CELA Std. E cont’d. – Client Capacity

57 See earlier slides on N.C. Rule 1.14 on representing the impaired client, in section on Standard A- Client Identification. Kate Mewhinney, CELA

58 When taking appropriate measures to protect the client: Be guided by the wishes and values of the client and the client’s best interests; Seek to minimize the intrusion into the client’s decision-making autonomy and maximize the client’s capacity; Respect the client’s family and social connections; and Consider a range of actions other than court proceedings and adult protective services. Kate Mewhinney, CELA Std. E cont’d. – Client Capacity

59 P RACTICE T IP – T ELL C LIENTS W HAT Y OU WILL DO IF THEY BECOME INCAPACITATED. Kate Mewhinney, CELA Consider informing clients of your policy, in an engagement letter or retainer agreement. For example: On occasion, our clients become ill while we are representing them. I am enclosing a page that explains how we would handle such a situation, if that was to happen to you. Please let me know if you have questions about it.

60 Kate Mewhinney, CELA W HAT I F Y OU B ECOME M ENTALLY U NABLE TO M ANAGE Y OUR A FFAIRS ? This page explains our policy if we have serious concerns about your mental capacity. If we are still representing you, we will continue to do so. We will take steps to protect your interests. We will follow legal standards of practice and ethics rules. N.C. ethics rules provide that, when a client cannot act in his own interest, the lawyer may take appropriate action in assessing the client’s capacity and considering protective action. This could include seeking appointment of a guardian. I would only take actions that I reasonably believe to be in your best interests and consistent with your previously expressed wishes. Suggested policy to share with clients – pg 1 of 2

61 Unless you direct me otherwise in writing, you authorize me: (1) to communicate with your family, your physicians and your other advisors and to give them confidential (private) information that I think is appropriate under the circumstances, and (2) to represent one or more members of your family or other advisors acting in a fiduciary relationship (which means a “trusted” relationship) for you or your property. However, I would not represent them in any proceeding involving determination of your capacity. Kate Mewhinney, CELA Suggested policy to share with clients- pg 2 of 2.

62 H YPO #2 Huey, Dewey, and Louie meet with you to discuss their Uncle Donald. They present to you a validly- executed DPOA, naming Huey as principal agent for Donald. The nephews share with you that Donald has mid- stage Alzheimer’s, and they need advice about his long- term care options. Kate Mewhinney, CELA

63 Q #2: W HO IS YOUR CLIENT ? A.Nephews B.Donald C.Huey D.Donald and Huey Kate Mewhinney, CELA

64 In representing a fiduciary for a person with diminished capacity: Be guided by the known wishes and best interests of the person with diminished capacity, and Disclose otherwise confidential information, in the event a conflict arises between the fiduciary and the person with diminished capacity, if necessary to avoid substantial harm to the interests of the person with diminished capacity. Kate Mewhinney, CELA Std. E cont’d. – Client Capacity

65 S TD. F – C OMMUNICATION AND A DVOCACY Work to minimize barriers to effective communication with and representation of older persons or persons with disabilities. Maintain direct communication with the client, even when the client chooses to involve others in the process, and especially when significant decisions are to be made. Kate Mewhinney, CELA

66 S TD. G - M ARKETING Consider marketing to educate public and promote profession of elder law. Only market truthful communications. No false or misleading communication at presentations or seminars. (e.g., no message that “one size fits all” or exaggeration of benefits of a course of action) Kate Mewhinney, CELA

67 Reasonable basis required to suggest superiority over other attorneys. Use organizational endorsement only if truthfully reflects collective judgment of the organization and disclose any relationship with the organization that might materially affect the weight or credibility of the endorsement. No uninvited or phone solicitation of prospective clients who may be vulnerable to undue influence. Kate Mewhinney, CELA Std. G – Marketing. Cont’d.

68 N.C. R ULES & D EVELOPMENTS R ELATED TO S TD. G Board of Legal Specialization of N.C. State Bar has authorized a certification in the field of elder law. See Held in conjunction with the National Elder Law Foundation, An attorney who has been certified as a specialist by that Board may so indicate in an advertisement in any way that is not false, deceptive or misleading. RPC 43 – July 15, 1988. Kate Mewhinney, CELA

69 T OP 10 P RACTICAL T IPS 1. Identify your client at outset of representation. 2. Meet with the identified prospective or actual elder client in private. 3. Provide client with written engagement contract. 4. Explain obligation of confidentiality to client and involved parties as early as possible. 5. Approach client matters in a holistic manner. Kate Mewhinney, CELA

70 6. Ensure adequate training and supervision of legal and non-legal staff. 7. Develop and use skills/processes for making and documenting preliminary assessments of client capacity to undertake specific legal matters at hand. 8. Advocate within the law courses of action chosen by the client. 9. No misleading or materially false information is communicated in connection with seminars, etc. 10. Ensure that ancillary services are licensed and meet the client’s needs. Kate Mewhinney, CELA

71 Thank you for your attention and for striving to meet the highest ethical standards for older clients and their families. Clinical Professor Kate Mewhinney

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