Originally published June 2, 2015
According to the most recent data available to the Department of Health and Human Services the population of Individuals who are 65 years or older was approximately 39.6 million in 2009. This equated to 12.9% of the total U.S. population for an equivalent of one in every eight Americans. It is estimated that by 2030 there will be 72.1 million individuals who are at least 65 years of age. There are unique and complex issues that elder law attorneys encounter when dealing with a population that has decreased mental capacity, suffer from disabilities, or clients who want family involvement when making end of life decisions.
Matthew Moore and Allen Reece, Indianapolis Elder Law attorneys, focus on the crucial ethical issues involved as faculty for ICLEF’s Elder Law Institute. Potential for conflicts of interest is a prime area of concern they point to. I appreciate Matt and Allen’s helpful review of this topic for Law Tips readers.
Beware of the Potential for Conflicts of Interest
It is extremely common for elder law attorneys to be approached by a group of multiple family members to address what they feel is a “family” issue. It is also common for the elder law attorney to be asked to draft the estate plans for spouses, children, and/or relatives of current and former clients. Identifying potential issues at the outset of the representation and informing the client of potential conflicts is critical for all attorneys, especially the elder law attorney.
Indiana Rules of Professional Conduct (IRPC) Rule 1.7 & 1.8 primarily address the attorney’s duties and obligations as far as conflict of interest situations, but overall any rule outlined in the IRPC should be reviewed and considered by the attorney when dealing with multiple clients where a conflict may become present. (Also review IPRC 1.9 & 1.10 dealing with conflict situations.)
Joint and Separate Representation
National Academy of Elder Law Attorneys’ (NAELA) Aspirational Standards identify joint and separate as the two types of attorney representations that may exist in multiple party/client situations. A joint representation is an attorney-client relationship whereby all confidences are shared between the clients and a separate representation is where confidences are not shared.1 In both situations it is imperative that the attorney explain to all affected parties the different types of representation and received informed consent if the parties wish to waive any confidences associated with these types of representations.
The IRPC states: “… the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. 2 “ Thus in most estate planning situations the assumption is that any information shared by any party with the attorney will be shared with the other party. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer may have to withdraw from representing one or more or all of the common clients if one client decides that some matter material to the representation should be kept from the others.” Id. Comment 31.
It is advisable that this disclosure be made in the initial engagement letter with the clients that is signed and returned. It could be argued that failure to get this acceptance signed in writing by the client that informed consent was not obtained as required under the IRPC. Although this concept seems simple, many clients do not understand that even if their circumstances change that the attorney would be obligated to disclose any information shared with the other party. This situation is extremely common if the clients are going through a subsequent divorce or separation.
The IRPC does address a common problem that elder law attorneys may face more regularly in the future. It is more common that attorneys are dealing with blended families where one party may want to make specific provisions for their own children or there is a risk that the surviving spouse may change the estate plan to decrease or completely remove a part of the deceased spouse’s inheritance they intended to ultimately go to their prior children. The IRPC says that in limited circumstances an attorney may proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. Id.
Thus it is imperative for the client to get a general back ground of the client’s situation before addressing any information that may be confidential. An initial information sheet should ask for family background including any prior divorces and the relationship of all children or potential heirs to the client. The attorney should then address the pros and cons of moving forward with a common representation with the clients before discussing specific information related to any estate plan. If the clients are unsure as to whether they wish to proceed or if the attorney feels that the parties’ estate plan could create a situation for conflicting interest it would be advisable to recommend that one of the parties obtain separate representation at the outset of the case. Failure to recognize these issues early may result in a situation where the attorney is forced to withdraw his or her representation if potential issues were not discussed at the outset.
1 NAELA Aspirational Standards Pg. 10
2 IRPC Rule 1.7 Comment 30.
About our Law Tips faculty participants:
Matthew C. Moore, partner, Fechtman & Moore, Indianapolis, focuses his practice on estate and trust administration, Medicare set aside issues, Medicaid planning, and estate planning for families with special needs children. He graduated from Franklin College in 2003 with a Bachelors of Arts Degree in Political Science. Then received his Juris Doctorate in 2006 from Indiana University School of Law-Indianapolis.
Allen Reece, Frank & Kraft, P.C., Indianapolis, focuses his practice on the fields of estate and elder law planning. Mr. Reece is a member of the Indiana State Bar Association, including the sections of Elder Law and Probate, Trust, & Real Property; the American Bar Association; the National Academy of Elder Law Attorneys; and the American Academy of Estate Planning Attorneys. He is a frequent speaker at seminars. Allen was formerly Vice President at Deutsche Bank Alex. Brown
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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