Who Is The Client?

It is very important that you identify who is and is not your client in many elder law matters.

As has been noted:

[i]t is to the client that the lawyer has professional duties of competence, diligence, loyalty and confidentiality. This is especially important in Elder Law, because family members may be very involved in the legal concerns of the older person or person with disabilities, and they may even have a stake in the outcome

Unfortunately our Code of Professional Conduct does not provide a lot of assistance.   The definition of a client in Rule 1.1 is:

a person who:

(a)     consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or

(b)     having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf.

The Commentary to this definition notes:

[1] A lawyer-client relationship may be established without formality.

….

[3}For greater clarity, a client does not include a near-client, such as … [a] family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established.

But who is consulting with you in these situations? Who is the main person consulting you, who will you be rendering services on behalf of?  Here is a checklist of possible factors to consider:

  • What is nature of the services requested, including what documents will be created and who will sign them?
  • Whose confidential information will be obtained in order to perform the services requested?
  • Who are the other parties impacted by the decisions of the identified client, and the relationship to the services being rendered? Also, what people think their relationship is(see Commentary [3])
  • Who arranged the meeting and came to the lawyer’s office?
  • Who will be paying for the services?
  • Identify and consider who has the right to terminate the retainer?

Once you’ve settled on who your client is, what about these other people?  Are they ‘near-clients’?  Are they co-clients?  Will there be a joint retainer? (see Rule 3.4-5)  For those who are not your clients, what is your relationship with them?

  • Do you allow them into the conversation? – are they necessary to the representation?
  • Are they an agent/interpreter for the older adult?
    • If the older adult insists on their being present, you need the older adult’s informed consent.
    • You need to discuss the impact of their presence on any solicitor-client privilege.
    • You need to carefully assess your client’s desires.
    • You need to discuss how any legal  documents produced under these circumstances might be subject to challenge.
  • Do you explain to them the nature of your relationship with them? You should make it clear that you are not disinterested (you are acting exclusively in the interests of your client, that you do not represent them. That any duties of confidentiality and loyalty are owed to the older adult, your client, and not them. ?[Rule 7.2-9 – you should urge them to get legal counsel of their own]
  • Do I accept payment from them?
    • If you do accept payment from them, you should first obtain your client’s consent; make it clear there will be no interference with your independence of professional judgment or with the client-lawyer relationship; and, that information is still confidential between you and your client and will not be shared with them.

NOTE – you should be very leery of accepting payment for your work from a joint account with the older adult, or from the 3rd party as attorney under a POA from the older adult’s funds.

  • Do you consult with them? You should get an informed waiver from your client to speak with them.
  • Do you give them advice? No unless it is a joint representation under Rule 3.4-5.

Ideally, you should make it clear with perhaps a non-engagement letter what your understanding is.  The following five blunt statements are from the American Academy of Matrimonial Lawyers:

  1. I am not your lawyer.
  2. I do not and will not represent you.
  3. I will at all times represent to my client’s interests, not yours.
  4. Any statements I make to you about this case should be taken by you as negotiation or argument on behalf of my client and not as advice to you as to your best interest.
  5. I urge you to obtain your own lawyer