For attorneys who focus all or part of their practice on the needs of older clients, the American Bar Association advises adhering to the “Four C’s of Elder Law Ethics.”
- Client identification
- Conflicts of interest
“First, all lawyers have an ethical obligation to make it very clear who their client is,” the ABA advises on the first point. “The client is the person whose interests are most at stake in the legal planning or legal problem. The client is the one, the only one, to whom the lawyer has professional duties of competence, diligence, loyalty and confidentiality.”
“For example, when legal planning involves property, such as a family home, in which several people have an interest, these interests are actually or potentially conflicting,” the newsletter states. Sometimes joint representation is possible, even with potential conflicts of interest, but it is more likely that we will be representing only the older person whose interests are at stake.”
Confidentiality, which is at the very heart of all attorney-client matters, simply means the lawyer may not share any information with other family members unless given permission to do so.
“Some clients want all information shared and family members involved in discussions,” the ABA points out. “Some merely want family members to be given general updates. Some want complete confidentiality. It differs from person to person.”
The final “C” is a special ethical responsibility when handling the legal affairs of older clients, according to the newsletter.
“Lawyers must treat the impaired person with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants.
“Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and what it is they want, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer all the questions, it makes it difficult for us to determine our client’s level of understanding.”