Elderlaw & Ethics

1. The Center for Elder Rights Advocacy presents Elderlaw & Ethics Confidentiality Kimberly E. O’Leary Professor, Thomas M. Cooley Law School Director, Sixty Plus, Inc. Elderlaw Clinic Lansing, MI

2. About This Webinar • Handouts are available on www.legalhotlines.org • A recording of the webinar will be available www.legalhotlines.org • Today’s presentation is part of a three-part series exploring three of the unique ethical issues that attorneys are presented with when working with older clients. • Dates for upcoming webinars: • Multi-representation: January 16th, 2014 from 2PM-3PM EDT • Register at www.legalhotlines.org

3. Today’s Presenter: Kimberly E. O’Leary A Professor of Law and Director of the Sixty Plus, Inc. Elderlaw Clinic at the Thomas M. Cooley Law School.

4. Audience participation! Q: Have you ever used a checklist to analyze confidentiality issues? Materials covered in this webinar can be found at www.legalhotlines.org

5. Learning outcomes • During this presentation you will learn: • How to consistently clarify who your client is in an elderlaw practice • How to engage the assistance of third parties to help an elderly client without running afoul of confidentiality rules or best practices • How to apply checklists to analyze those issues • How ethics rules affect your analysis • Practical tips for dealing with these issues Materials covered in this webinar can be found at www.legalhotlines.org

6. Confidentiality typically arises in 2 different ways • An elderly person is accompanied by family members, caregivers or other interested parties • You need to involve third parties to help a client Materials covered in this webinar can be found at www.legalhotlines.org

7. Ethics rules • Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer (client authorizes activity by lawyer) • Rule 1.4 Communication (lawyer must inform client, client makes informed decisions) • Rule 1.6 Confidentiality Of Information (lawyer must not disclose information without client consent or implied consent) Materials covered in this webinar can be found at www.legalhotlines.org

8. First issue: An elderly person is accompanied by family members, caregivers or other interested parties • A person may not feel comfortable telling you what is on his or her mind if other people are in the room • This can be especially difficult if the person relies on the other person in important ways • Although abuse or exploitation may be an issue (and one you should be watchful about), even well-intentioned third parties can keep an elderly person from telling you everything he or she wants to convey Materials covered in this webinar can be found at www.legalhotlines.org

9. Use checklist: How to Maintain Confidentiality in an Elderlaw Practice • Step 1: Identify the client • Who is the person with the primary legal issue? • Does this person want you to be his or her lawyer? • Step 2: Are there other people involved? Who are they and what are their interests? Materials covered in this webinar can be found at www.legalhotlines.org

10. How to Ensure Confidentiality in an Elderlaw Practice (continued) • Step 3: Evaluate potential conflicts of interest • Step 4: If two people want representation and have conflicting interests, choose who to represent (use multi-representation analysis if considering representing a group of people) • Step 5: Are others involved who do NOT have legal interests? How do they want to be involved? • Step 6: Are there red flags or indicators of abuse? Materials covered in this webinar can be found at www.legalhotlines.org

11. How to Ensure Confidentiality in an Elderlaw Practice (continued) • Step 7:Are there other people the client wants involved in the case? • Step 8: Does the client want anyone involved in attorney-client discussions? • Explore why? • Counsel the client about reasons this might not be a good idea. • Complete the Client Authorized Disclosure During Representation form. Materials covered in this webinar can be found at www.legalhotlines.org

12. Case Study #1 • A woman calls your office and tells you her father needs a Will. • She tells you he cannot hear well enough to talk on the phone, so you schedule an appointment. • When they come in, she wants to sit in on the meeting, stating that her father is only comfortable with her in the room. • She becomes agitated when you tell her you need to meet with her father alone; she says, “But I had some things I needed to ask you.” Materials covered in this webinar can be found at www.legalhotlines.org

13. Audience participation! 1. Would you allow the daughter to sit in on the client meeting initially? Materials covered in this webinar can be found at www.legalhotlines.org

14. Audience participation! 2. Would your answer be different if this did not involve a Will but rather involved a complaint against a contractor for an inadequate driveway repair? Materials covered in this webinar can be found at www.legalhotlines.org

15. Audience participation! 3. If you would not allow her to sit in initially, might there be circumstances where you would ask her to sit in with you and the Dad later? Materials covered in this webinar can be found at www.legalhotlines.org

16. Analysis • Is Dad the client? If so, • Potential undue influence • Potential creation of attorney-client expectation with daughter • Lack of privacy • Depending upon how agitated, potential exploitation issues • Might Daughter be the client? • Possible involvement later Materials covered in this webinar can be found at www.legalhotlines.org

17. Case Study #2 • While visiting a client in a nursing home, her aide tells you another woman needs help with a Medicaid application. The woman is physically frail but mentally sharp. • When you get to her room, there are two family members visiting her and she has a roommate. • The family members in tag team start telling you all about why Mom needs a lawyer, the status of assets, and how worried they are about the bill being paid. One of them says “I’m her power of attorney. You can talk to me about this.” • The woman says, “Hi. Thanks for stopping by.” Materials covered in this webinar can be found at www.legalhotlines.org

18. Analysis • Figure out a way to have a private conversation • Discuss authorization to speak to different family members, aide, nursing home administrators whether to involve the attorney in fact in confidential meetings • Discuss possible conflicts with the client Materials covered in this webinar can be found at www.legalhotlines.org

19. Do you have any questions?

20. Audience participation! Q: If you need to reach out to a third party to help in some way to achieve a client’s goals, do you need permission from your client before you speak to the third party? Materials covered in this webinar can be found at www.legalhotlines.org

21. Second Issue: You need to involve third parties to help a client • Importance of consulting with your client: • Rule 1.6 Confidentiality Of Information • (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). • MR Comment allows for implied authorization; NAELA standards encourage discussion and clarification with client Materials covered in this webinar can be found at www.legalhotlines.org

22. Second Issue cont’d: You need to involve third parties to help a client • Elderly people often experience people talking about them • Conversations with people around them might affect them • Some information-even if not all- might be considered private Materials covered in this webinar can be found at www.legalhotlines.org

23. How to How to Maintain Confidentiality in an Elderlaw Practice (continued) • Step 9: During representation, you and your client might agree that your client wants something that requires the assistance of a third party. Document what your client wants the third party to understand about the client’s decisions. • Step 10: Communicate with your client any concerns you might have about discussing this matter with a third party. Materials covered in this webinar can be found at www.legalhotlines.org

24. Case Study #3 • You’ve been helping a woman draft a contract to govern the management of a small vacation cabin that has been in the family for several generations. • Although the woman has sole ownership of the cabin, she thinks of it as a family property • The cabin is used by some of her siblings, cousins, nieces and nephews. When it is not being used by family, it is rented and the income is used to maintain the cabin. • Your client’s nephew drops into your office and tells your secretary he wants to discuss the family property. Materials covered in this webinar can be found at www.legalhotlines.org

25. Audience participation! • Ask your secretary to politely tell him you cannot speak with him • Speak to him in the waiting area just to tell him you can’t speak to him • Invite him into your office to find out what he wants to tell you, being careful not to tell him anything • Invite him into your office to discuss options on the table for managing the property Do you: Materials covered in this webinar can be found at www.legalhotlines.org

26. Analysis • Any of the answers might be correct, depending upon the conversations you have had with your client. • If you haven’t had any conversations with your client about this, you need to speak with her. Materials covered in this webinar can be found at www.legalhotlines.org

27. Do you have any questions?