Legal Track Ethics In Elder Abuse Cases

1. Legal TrackEthics In Elder Abuse Cases Tristan D. Svare, San Bernardino County District Attorney’s Office Scott Gardner and Harold Bartholomew, Jr. Office of Walter P. Reed, District Attorney, 22nd Judicial District, St.Tammany and Washington Parishes

2. World Elder Abuse Awareness Day 2012June 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.

3. Understanding the Dynamics • Fears • Lead to underreporting • Shame • Loss of independence • Threats from perpetrator

4. No one is beyond abuse • 65.7% female • 42.8% were over 80 years of age • 89.3% in domestic settings • 6.2% of substantiated reports were in long-term care settings,

5. A new field • Unfamiliar attorneys • In over their heads • Attorneys will be involved in the FACTS of the case • Attorneys involved in the PERPETRATION of offenses

6. Help With Ethical Questions • Louisiana Ethics Advisory Service Committee. • LSBA web site • Put your question in writing and fax or email to the attention of Ethics Counsel

7. http://www.lsba.org/2007MemberServices/ethicsadvisoryservice.asp?Menu=PMhttp://www.lsba.org/2007MemberServices/ethicsadvisoryservice.asp?Menu=PM

8. We Are Targets • Public • Courts • Lawyers • The White Hat • Gotten Dirty • Ethics and Professionalism • Clean the hat

10. ODC 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: WWW.LADB.ORG, • Searchable database and easy access to complaint forms.

11. For our own good,

12. Ethics, Lawyers and Elder Abuse • Mandatory Reporting • Attorney Disclosure and Privilege

13. Ethics 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?

14. How to report suspected abuse or neglect: • EPS Statewide Hotline (from within Louisiana only) at 1-800-259-4990 • If out-of-state, call 1-225-342-9722. • Call your local law enforcement agency. • Call 911.

15. To Contact EPS • New Orleans Region • Phone: (504) 832-1644 • Toll Free (In-state only): 1-800-673-4673 • Fax: (504) 835-0409 • State office Hotline: 800-259-4990 • http://goea.louisiana.gov • http://goea.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=5&pnid=2&nid=16

16. Attorneys 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)

17. Attorney 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;

18. Attorney 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. 1216.

19. RULE 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.

20. RULE 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. 

21. The Civil Attorney's Perspective

22. http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=56138http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=56138

23. http://www.ncea.aoa.gov/Main_Site/About/What_We_Do.aspx

24. http://www.ncea.aoa.gov/main_site/library/cane/CANE_Series/CANE_ethicalconcerns.aspxhttp://www.ncea.aoa.gov/main_site/library/cane/CANE_Series/CANE_ethicalconcerns.aspx

25. Writing Books About It

26. Notarial Practice • Much 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.

27. Protect 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?

28. Considerations • These 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 Law • I add Competency of Client & Confidentiality

29. Client 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?

30. Conflicts of Interest • Can 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.

31. Communications • 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?

32. Competency • 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. …

33. Capacity • 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…

34. Confidentiality • 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.

35. Mandatory Reporting is a Law. • Does Rule 1.6 allow reporting of elder abuse? • Is it therefore REQUIRED?

36. Drafting 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.

37. Plan 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.

38. What 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.

39. Undue Influence • Louisiana recognizes the concept of undue influence in La. C. C. Art. 1479. 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.

40. Undue Influence • Warning Signs of Undue Influence include: • 1) Isolation of elder from social contact, family, friends • 2) Control of elder’s mail, phone calls, visitors, outings • 3) Promises to elder she/he will be taken care of for life. • Elderly Protective Services will investigate complaints of Isolation.

41. Undue Influence • In 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.

42. Attorney 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, 2002-2721 (La. 02/25/2003), 838 So.2d 1283.

43. Lawyers Involved in Elder Abuse

44. Reporting 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.

45. Reporting Violations • 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)

46. Shall Report • A 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.

47. Knowledge          • …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.

48. Knowledge          • …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.

49. When 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.

50. Appropriate 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.