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Law Tips: Beware of the Potential for Conflicts of Interest With Your Elder Law Clients

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.

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1 NAELA Aspirational Standards Pg. 10

2 IRPC Rule 1.7 Comment 30.

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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.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Expert Input on Estate Planning for Digital Assets – With Forms!

It’s my pleasure to share with you a timely pointer from John O’Drobinak, ICLEF Estate Planning faculty member. Mr. O’Drobinak reminds fellow practitioners of the importance of assisting clients with a plan for their digital assets. Getting to the heart of the matter, he’s also providing the forms he uses in his practice.

Digital assets are becoming commonplace in estates and trusts. The fiduciaries charged with the valuation and access to the Decedent’s assets now face a new challenge. This challenge is not one traditionally encountered.

Digital assets consist of information that is electronically stored or accessed on an electronic device. It can be stored on hardware or in online accounts. This could be for social networking and media sites, blogs, cloud storage, banking services, and investment services. Even if the fiduciary knows that these are digital assets, accessing them may still be a problem.

The only way to insure against this is for the Decedent to prepare a list of digital assets and passwords. Needless to say, this must remain confidential, and needs to be updated from time to time.

To access the forms that Jack utilizes to insure his clients digital assets are handled per their wishes and efficiently click here: Confidential Record of Digital Assets-Passwords

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Gather more beneficial pointers from our expert panel during the 120 Hot Tips in Estate, Trust and Probate Practice CLE. This program is available on our Video Replay calendar or as an On Demand CLE option.

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About our Law Tips faculty participants:
John M. O’Drobinak, O’Drobinak & Nowaczyk, P.C., Schererville, IN
Mr. O’Drobinak has practiced law in Lake County, Indiana, since 1960. He graduated cum laude from the University of Notre Dame in 1957 and received his Juris Doctor Degree from Indiana University in 1960. An attorney with a broad range of experience, Jack’s areas of concentration include estate planning, guardianships, trusts and probate. A widely sought speaker and seminar leader, Mr. O’Drobinak frequently makes presentations in the fields of estate planning, probate and pre-disability planning

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.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Upcoming December CLE Seminars

2015 Year in ReviewTM December Video Replays – 12 CLE / 1 E

December 28-29
MICHIGAN CITY
Location: Northern Indiana Educational Foundation
402 Franklin St., Michigan City, IN 46360

December 29-30
BLOOMINGTON
Location: Bloomington Convention Center
302 S College Ave., Bloomington, IN 47403

December 29-30
INDIANAPOLIS

Location: ICLEF Conference Facility,
230 E Ohio St. Suite 500, Indianapolis 46204

December 29-30
MERRILLVILLE

Location: Avalon Manor
3550 E US Hwy. 30, Merrillville, IN 46410

December 29-30
MUNCIE

Location: Horizon Convention Center
401 S High St., Muncie, IN 47305

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All Day EthicsTM
8 CLE / 8 E – December 31, 9:00 A.M. – 5:00 P.M.
In-Person Only Seminar
– ICLEF Conference Facility, Indianapolis

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Upcoming Live November Seminars

Basic Will Drafting
6 CLE – This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Litigating with Pictures: Courtroom Persuasion in the Multimedia Age
A NATIONAL SPEAKER SEMINAR
6 CLE / 1 E – This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Avoiding Malpractice & Ethics Complaints from the First Client Contact
3 CLE / 3 E – This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Advanced Consumer Bankruptcy Roundtable
6 CLE / 1 E – This program is no longer available. Please join us next year.

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eDiscovery
6 CLE / 1 E –This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Worker’s Compensation Institute
6 CLE / 1 E – This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Indiana Insurance Law Symposium
6 CLE / 6 Insurance CE – This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the Online/On Demand Video or purchase the Publication of this Seminar by Clicking Here.

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Gain the Edge: Negotiation Strategies for Lawyers
A NATIONAL SPEAKER SEMINAR
6 CLE / 6 CME / 1 E – This program is no longer available. Please join us next time.

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Annual Criminal Case Law Update
1 CLE – November 17, 12:00 P.M. – 1:00 P.M.
Live In-Person Seminar
– ICLEF Conference Center, Indianapolis
Live Individual Webcast
– From your home or office computer

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The Tougher Topics of Business Law
6 CLE – November 18, 9:00 A.M. – 4:30 P.M.
Live In-Person Seminar
– ICLEF Conference Center, Indianapolis
Live Individual Webcast
– From your home or office computer
Live Group Webcasts
– Ice Miller Law Office, Indianapolis
– DeFur Voran Law Office, Muncie
– May Oberfell Lorber Law Office, Mishawaka

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Midwest Intellectual Property Symposium
14 CLE / 2 E – November 19-20
Live In-Person Only Seminar
– 502 East Event Center, Carmel

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Unique Issues in Estate Planning
6 CLE – November 20,  9:00 A.M. – 4:30 P.M.
Live In-Person Only Seminar
– Avalon Manor, Merrillville

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