Presentation on theme: "Legal Track Ethics In Elder Abuse Cases"— Presentation transcript:
1Legal Track Ethics In Elder Abuse Cases Tristan D. Svare,San Bernardino County District Attorney’s OfficeScott Gardner andHarold Bartholomew, Jr.Office of Walter P. Reed, District Attorney, 22nd Judicial District, St.Tammany and Washington Parishes
2World Elder Abuse Awareness Day 2012 June 11, 2012 The opinions expressed herein are not necessarily the opinions of the District Attorney’s Office. Each and every case is evaluated in light of the facts particular to that case.
3Understanding the Dynamics FearsLead to underreportingShameLoss of independenceThreats from perpetratorFears of many seniorsLeads to underreportingFeelings of shameConcern that exposure will lead to loss of independenceSometimes accompanied by threats from perpetrator
4No one is beyond abuse 65.7% female 42.8% were over 80 years of age 89.3% in domestic settings6.2% of substantiated reports were in long-term care settings,Harold
5A new field Unfamiliar attorneys In over their heads Attorneys will be involved in the FACTS of the caseAttorneys involved in the PERPETRATION of offenses
6Help With Ethical Questions Louisiana Ethics Advisory Service Committee.LSBA web sitePut your question in writing and fax or to the attention of Ethics Counsel
10ODC Complaint Filing Easier than ever to file complaint Two ways: 1) Submitting a complaint form to ODC,2) Writing a letter to ODC.The public has easy to access information at ODC's website:Searchable database and easy access to complaint forms.
12Ethics, Lawyers and Elder Abuse Mandatory ReportingAttorney Disclosure and Privilege
13Ethics and Mandatory Reporting of Elder Abuse La. R.S. 14:403.2 requires reporting of abuse by ANY PERSON. “Any person, … having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with Subsection D of this Section” R.S. 14:403.2.Does an attorney fit the definition of any person? Are attorneys mandatory reporters?
14How to report suspected abuse or neglect: EPS Statewide Hotline (from within Louisiana only) atIf out-of-state, callCall your local law enforcement agency.Call 911.
15To Contact EPS New Orleans Region Phone: (504) 832-1644 Toll Free (In-state only):Fax: (504)State office Hotline:
16Attorneys Can Disclose "to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.“ Rule 1.6(b) (3)
17Attorney Client Privilege To establish attorney-client privilege, several elements must be proven:(1) the holder of the privilege is or sought to become a client;(2) the communication was made to an attorney or his subordinate in a professional capacity;
18Attorney Client Privilege (3) the communication was made outside the presence of strangers;(4) the communication was made to obtain a legal opinion or services; and(5) the privilege has not been waived.Cacamo v. Liberty Mut. Fire Ins. Co., 798 So.2d 1210 (La. App., 2001), at pg
19RULE 4.3. DEALING WITH UNREPRESENTED PERSON …a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in a matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
20RULE 4.3. DEALING WITH UNREPRESENTED PERSON The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
26Notarial PracticeMuch of the Financial abuse of the elderly uses a notary at some point in time. An attorney acting as a notary has a special set of ethical and drafting concerns in identifying the wishes of the client.
27Protect attorney and client Meet the client in their environment if possible.Is the home: Well maintained? Clean? Stocked with food?Meet the client alone, whether at your office or at their home.Communicate with the client. Is the client: Oriented to current events? Making their own decisions?
28ConsiderationsThese issues have been referred to as the "4 Cs" of Ethics in Elder Law:1) Client Identification,2) Conflicts of Interest,3) Communications, 4) Competency of the lawyer.Abramson, Betsy, Ethical Considerations in Elder LawI add Competency of Client & Confidentiality
29Client Identification In a Procuration/Mandate (Power of Attorney) ask yourself, Who is the client?Then ask, Is representation clear to all concerned?If someone not a client, should they be represented?If someone not a client, should they be present during discussion with client?
30Conflicts of InterestCan the attorney represent both the principal and the agent/mandatary?Are there any conflicts now, or foreseeable in the future?Rule 1.7 Waiver . It will be the attorney's burden to show the conflict was waived.Some conflicts can not be waived.Can the attorney represent both the principal and the agent/mandatary?Are there any conflicts now, or foreseeable in the future?Some conflicts under Rule 1.7 can be resolved if each client waives the conflict, in writing. It will be the attorney's burden to show the conflict was waived.Some conflicts can not be waived.
31Communications RULE 1.4. COMMUNICATION (b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. …Can you do this when only communicating with the client through the proposed agent?If the agent is your client, have you made sure the elderly person understands that? Have you suggested that they obtain counsel?
32Competency RULE 1.1. COMPETENCE (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. …
33Capacity RULE 1.14. CLIENT WITH DIMINISHED CAPACITY (b) …the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client…
34Confidentiality RULE 1.6. CONFIDENTIALITY OF INFORMATION (b) A lawyer may reveal information…(3) …to prevent, mitigate or rectify substantial injury to the financial interests or property of another…(6) to comply with other law or a court order.
35Mandatory Reporting is a Law. Does Rule 1.6 allow reporting of elder abuse?Is it therefore REQUIRED?
36Drafting Considerations Assuming you have a competent client, and everyone involved knows who the client is, you must decide what content you will recommend to your client in drafting the Procuration/Mandate.
37Plan Ahead.Particularizing the authority would assist in the transaction, and possibly avoid litigation.Consider requiring TWO people in the authority to alienate, donate, etc. You may avoid an investigation by E.P.S., the Sheriff, or an Elder Abuse Prosecutor.
38What goes in?Is a standard form that allows for everything under the sun a good idea? Are donations really necessary? Are unfettered gifts?Use specific authority where needed. Avoid temptation for the agent, and temptation of the heirs to go after the notary when the agent steals everything.
39Undue InfluenceLouisiana recognizes the concept of undue influence in La. C. C. Art A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.
40Undue Influence Warning Signs of Undue Influence include: 1) Isolation of elder from social contact, family, friends2) Control of elder’s mail, phone calls, visitors, outings3) Promises to elder she/he will be taken care of for life.Elderly Protective Services will investigate complaints of Isolation.
41Undue InfluenceIn preparing and executing a procuration or mandate you should be on the lookout for undue influence. Be aware of the fact that others may challenge that document later in time. Undue influence may well be part of that challenge.
42Attorney Undue Influence Rule 1.8 is designed to protect a client from undue influence by their attorney, and has been strictly interpreted against the attorney at times. See, In re Grevemberg, (La. 02/25/2003), 838 So.2d 1283.
44Reporting Violations“It is clear that absolute certainty of ethical misconduct is not required before the reporting requirement is triggered. The lawyer is not required to conduct an investigation and make a definitive decision that a violation has occurred before reporting; that responsibility belongs to the disciplinary system and this court.
45Reporting ViolationsWe hold that a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred. As such, knowledge is measured by an objective standard that is not tied to the subjective beliefs of the lawyer in question. In re Riehlmann, 891 So.2d 1239 (LA, 2005)On the other hand, knowledge requires more than a mere suspicion of ethical misconduct. We hold that a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred. As such, knowledge is measured by an objective standard that is not tied to the subjective beliefs of the lawyer in question. In re Riehlmann, 891 So.2d 1239 (LA, 2005
46Shall ReportA lawyer possessing unprivileged knowledge of a violation of this code shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.…the rule has three distinct requirements:(1) the lawyer must possess unprivileged knowledge of a violation of the Rules of Professional Conduct;(2) the lawyer must report that knowledge; and(3) the report must be made to a tribunal or other authority empowered to investigate or act on the violation.
47Knowledge …it is clear that absolute certainty of ethical misconduct is not required before the reporting requirement is triggered. The lawyer is not required to conduct an investigation and make a definitive decision that a violation has occurred before reporting; that responsibility belongs to the disciplinary system and this court. On the other hand, knowledge requires more than a mere suspicion of ethical misconduct.
48Knowledge …a lawyer will be found to have knowledge of reportable misconduct,…where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred.knowledge is measured by an objective standard that is not tied to the subjective beliefs of the lawyer in question.
49When to Report Once the lawyer decides that a reportable offense has likely occurred, reporting should be made promptly. …….This purpose is not served unless Rule 8.3(a) is read to require timely reporting under the circumstances presented.
50Appropriate Authority “Louisiana Rule 8.3(a) requires that the report be made to "a tribunal or other authority empowered to investigate or act upon such violation."…as the comments to Model Rule 8.3(a) explain, the report generally should be made to the bar disciplinary authority.“Louisiana Rule 8.3(a) requires that the report be made to "a tribunal or other authority empowered to investigate or act upon such violation." The term "tribunal or other authority" is not specifically defined. However, as the comments to Model Rule 8.3(a) explain, the report generally should be made to the bar disciplinary authority.
51Appropriate Authority “a report of misconduct by a lawyer admitted to practice in Louisiana must be made to the Office of Disciplinary Counsel.” In re Jordan, supra.
52Not to CourtTherefore, respondent is incorrect in arguing that he discharged his reporting duty under Rule 8.3(a) by reporting Mr. Deegan's misconduct to Mr. Thompson's attorneys, the District Attorney, and/or the Criminal District Court. It is undisputed that respondent did not report to the appropriate entity, the ODC, until That report came too late to be construed as "prompt." In re Riehlmann, 891 So.2d 1239 (LA, 2005)
53Betsy Abramson's Scenarios Abramson, Betsy, Ethical Considerations in Elder Law Cases, Wisconsin Lawyer, Vol. 73, No. 9, September 2000.
54Situation A.You draft a financial power of attorney for Mr. A that includes a gifting power. You meet with Mr. A and his son, the agent under the financial power of attorney, to execute the document. A few months later, Son calls and asks for help in transferring the title on Mr. A's cabin up north to Son's name. You know that outside some small investments, this real estate is the only other asset Mr. A. owns.
55Situation B.Same scenario as above, except that a few years ago you drafted Mr. A's will for him. The will included a provision that the cabin up north was to be put into a trust in the names of Mr. A's three children and six grandchildren, until such time as the youngest grandchild turned 21.
56Situation C.You meet with Mr. and Mrs. C. to assist them with their estate plan and to draft powers of attorney for health care and finances. Mr. C. appears rough, demeaning, and nasty to Mrs. C., making disparaging comments about how little she understands anything, and how all the money is really his since he worked his whole life and she sat at home "doing nothing." After all, he says, the kids have been gone for more than 35 years. Mrs. C. gingerly mentions that she'd like to remember her sister and her church in her will. Mr. C. sneers and bellows "Not on your life are we leaving your crazy sister and those phonies at the church one dime!"
57Situation D.You get a call from a social worker at the area hospital about an elderly woman admitted to the hospital who was brought into the Emergency Room last night with chest pains, a fractured wrist, and a head wound. Upon gentle probing from the ER staff, Mrs. D. admitted that her unemployed adult son, who lives with her, had inflicted the injuries. Mrs. D. also told the social worker that she was scared of her son, that this was not the first time he had harmed her, that he intimidates her into giving him money, and she doesn't know what to do. The social worker, with the client's reluctant agreement, asks you to meet with the client.
58Situation E.Mr. and Mrs. E., who are in their second marriage, have been your clients for 10 years. You most recently helped them with a will and explained the Medical Assistance spousal impoverishment provisions to them, due to their fear that Mrs. E. may have to enter a nursing home because of her progressive decline from Parkinson's Disease. Mr. E. is very intent that "the nursing home not get their money" and told you that he plans to give as much money as he can to his daughter (from his first marriage). When Mrs. E. temporarily leaves the room to use your rest room, Mr. E. mentions that he doesn't care what it takes, he will just sign his wife's name, as he has in the past, to all necessary documents to get the funds ultimately transferred to his daughter.
59Attorney Ethics HelpIf you are really in a quandary, consider the Louisiana Ethics Advisory Service Committee.You can find them at the Louisiana State Bar Association's web site, their web address isThe Bar's web site suggests: To access this service you only need to put your question in writing and fax or to the attention of Ethics Counsel at fax: (504) or to Eric Barefield.