The Risk Manager, Fall 2004

One clear national trend is that lawyers are encountering more problems when representing older adults. The obvious reason for this is that older adults are increasing in number at a record pace – they constitute a growing part of the client base and as they live longer are bringing more complex matters for resolution. What follows are three recent older adult sensitive cases considered in other jurisdictions:

• Wyoming: An older adult died while his divorce action was pending with the result that the estranged wife was able to claim a 25% elective share of a $3 million dollar estate. A daughter sued the lawyer representing her father in the divorce for failing to complete the divorce action before his death knowing that her father was in fragile health and had executed a new will leaving her the bulk of his estate. Held: The father had intended to benefit only himself when retaining the lawyer to represent him in the divorce action; therefore, the lawyer had no duty to protect the daughter’s interests by expediting the divorce action. (In Re Estate of Drwenski, Wyo., No. 03-29, 1/28/04; ABA/BNA Lawyers’ Manual On Professional Conduct, Current Reports, Vol. 20, No.3, page 58 (2/11/04).)
• New York: A lawyer holding a will of a client asked for guidance from the New York State Bar Ethics Committee when he received a letter requesting return of the will signed by the client, but apparently drafted by someone else. The lawyer suspected that the client was incapacitated and was being unduly influenced by a family member. Opinion: A lawyer holding a will has a duty to return it upon request, but under these circumstances may contact the client to ascertain the client’s intent without violating rules concerning contact with represented parties and solicitation. If unable to resolve the question by contact, the lawyer may seek judicial guidance. (New York State Bar Ass’n Committee on Professional Ethics, Op.775, 5/4/04. Opinion is available on the NY State. Bar Ass’n web site.)
• Massachusetts: A lawyer received a fax of a letter signed by an elderly client he had represented for years discharging him and instructing him to turn the file over to a successor lawyer. The lawyer feared this was the result of an abusive child living with the client who appeared to be taking over the father’s affairs against the father’s wishes. While the lawyer did not think the client was incompetent, he thought the client was exposed to considerable harm including physical, mental, and financial. The Massachusetts Committee on Professional Ethics opined that under the circumstances the lawyer may take action to verify that the client was discharging him of his own free will before turning the file over to the successor lawyer. One way of accomplishing this is to write the successor lawyer and ask for a private meeting with the elderly client. The lawyer may also confer with other family members to inform them of his concerns “only to the extent necessary to protect the client’s interests” without violating client confidentiality requirements. (Mass. Bar Ass’n Committee on Professional Ethics Opinion 04-1, 1/22/04. Opinion is available on the Mass. Bar Ass’n web site.)

If you find yourself in a delicate situation when representing an older adult, use the KBA Ethics Hotline as a first line of defense. For more on professional responsibility and older adult representation read the KBA Bench & Bar article “Golden Oldies, The Graying of Professional Responsibility” available on our web site, www.lmick.com, in the Risk Management section.