JUNE 22, 2009 VOLUME 16, NUMBER 45
A lawyer’s job is, of course, to help his or her client to accomplish the client’s goals. Sometimes, though, the client’s capacity may be diminished, and particularly in the elder law practice. What should the lawyer do when the client seems to be vulnerable to financial exploitation, or physical or emotional abuse? How far may the lawyer go to protect the client? When does the lawyer have a duty to take action?
The rules of ethics governing lawyers actually address the question. The American Bar Association has developed “Model Rules of Professional Responsibility,” which have been adopted (in some form) in nearly every state. One of those Model Rules, Rule 1.14, addresses how to deal with a client with diminished capacity. The central principle: a lawyer should strive to “maintain a normal client-lawyer relationship” with the client, despite the diminished capacity. The Rule specifically recognizes that sometimes it can even be necessary for the lawyer to initiate some sort of protective action — possibly including a guardianship or conservatorship proceeding.
Stephen Eugster, a Spokane, Washington, lawyer, thought he faced that question. An elderly widow had consulted him about the estate plan she and her husband had set up before the husband’s death. Although the plan gave considerable control to her son, the widow no longer trusted the son to handle her finances. She wanted to remove him as her agent and trustee, and try to make him return assets she thought had improperly been transferred into his control.
Mr. Eugster prepared new documents naming himself as agent and trustee, and had his client sign them. Then he approached the son about getting further information and transfer of assets. As it happened, the son was also a former client of Mr. Eugster’s.
After a brief inquiry Mr. Eugster decided that his client’s son was acting properly. He wrote to his client, suggesting that she should be willing to trust her son and let him once again take responsibility for all her finances. She responded by seeking advice from a different lawyer, and her new attorney sent Mr. Eugster a letter dismissing him and revoking his authority under powers of attorney and the trust.
That apparently set off Mr. Eugster’s alarm bells. He was convinced, he said later, that his client must not have been competent, and that the new lawyer and her new trustee must have exercised undue influence over her. Without consulting or even visiting her, he filed a petition seeking appointment of her son as her guardian.
Several months, one professional mental evaluation and $13,500 later, the client conclusively established that she was competent and acting on her own initiative. The guardianship petition was dismissed. The client, however, complained to the Washington State Bar Association.
After a lengthy investigation and hearing process the Disciplinary Board of the Bar recommended that Mr. Eugster should be disbarred. The Washington Supreme Court, in a 5-4 vote, softened the punishment to an 18-month suspension and an order that he repay the legal fees his former client incurred to defend the guardianship. Disciplinary Proceeding Against Eugster, June 11, 2009.
Mr. Eugster had argued that Rule 1.14 recognized that he might have an obligation to actually file the guardianship petition, and that he truly believed that his client was at risk. The Disciplinary Board pointed out that Mr. Eugster had not actually made an investigation to determine whether his client’s capacity had slipped since had last seen her several months before, and that in any event his Petition revealed extensive information obtained from his client during the representation. The Court agreed with the Bar that Mr. Eugster had violated his ethical duties in a number of ways, including acting against his client’s interest, seeking a resolution that ran counter to the purpose for which she had retained him, and disclosure of client confidences.
Four Justices dissented from the Supreme Court’s opinion. All four of them would have imposed permanent disbarment rather than the 18-month suspension of Mr. Eugster’s law license.
What might Mr. Eugster have done if he did think he needed to “protect” his client? The ABA’s Rule 1.14 actually provides several suggestions, none of which Mr. Eugster seems to have considered. As part of the Rules, the Bar offers detailed Comments that lawyers can look to when trying to resolve ethical dilemmas. Comment [5] to Rule 1.14 gives some useful guidance to lawyers who may be concerned about a client’s vulnerability. The basic idea behind the comment: a guardianship petition, while permitted, should be the last resort, after consultations with other professionals, family members, state protective services and other individuals or groups. Always the lawyer should keep in mind the client’s wishes, values, best interests and goals .
Ironically, the lawyer who took over Mr. Eugster’s client seems to have reviewed Rule 1.14 and the Comments — and acted accordingly. One of the suggestions made by the Comment is that the lawyer might seek out appropriate professional services and use powers of attorney and other protective arrangements short of court action. The new lawyer’s approach followed those suggestions perfectly: he had the client sign a new trust and powers of attorney, naming a professional fiduciary to manage her affairs. That allowed the client’s interests to be protected without compromising her desire not to extend her son’s authority over her personal or financial affairs.
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