What are the 5 main duties towards clients?
(1) Zealous representation
(2) Competence
(3) Diligence
(4) Confidentiality
(5) Loyalty
Who do you represent in this situation: elderly person with a child acting in a fiduciary role for the elderly client
Elderly client
What is the best method of IDing clients?
Intake form
The duty of confidentiality generally requires that attorneys not do what?
Voluntarily disclose information about representation
Does duty of confidentiality continue after death?
Yes
In what 3 situations may a lawyer reveal confidential info?
(a) Client gives informed consent,
(b) Disclosure is impliedly authorized in order to carry out representation, or
(c) Disclosure is permitted by 1.6(b)
What are the 6 types of disclosures permitted under 1.6(b)?
(1) Prevent reasonably certain death or substantial bodily harm;
(2) Prevent client from committing crime/fraud that is R certain to cause substantial financial injury and in furtherance of which the client has used or is using the lawyer's services
(3) P
In joint representation, what info is confidential and what info is not?
Confidential: information shared among the group
Non-confidential: when one party privately shares info with lawyer and there's a potential possibility of conflict with another joint client
Attorney must explain the ______________ of representation to the client
Scope
Def: concurrent conflict of interest (2 types)
(1) When lawyer represents adverse clients, or
(2) Significant risk that representation of one client will be materially limited by duties towards
(a) another client,
(b) former client,
(c) third party, or
(d) lawyer's personal interests
What are the 4 requirements to represent a client despite the existence of a concurrent conflict or interest?
(1) Lawyer R believes he can provide competent and diligent representation to each client;
(2) Representation not prohibited by law;
(3) Clients not directly adverse; and
(4) Each client gives informed, written consent
When representing joint clients, lawyer must explain ________________
The risks of joint rep
If a lawyer stops representing one joint client, what must he do to continue representing the other joint client?
Get the former joint client's informed consent
Lawyer joint representing spouses has what kind of duty of loyalty to each spouse?
Equal
Is there a conflict here: representing spouses when one client with diminished capacity/institutionalized and other spouse is non-incapacitated/non-institutionalized
Yes, family of diminished capacity spouse should hire separate counsel to work with other spouse, especially in second marriage situations
What are 5 examples of typical conflicts of interest in elder law?
(1) Joint rep of H and W for EP
(2) Joint rep of multiple fiduciaries (eg. co-trustees or co-executors)
(3) Individuals serving multiple roles (e.g. client and fiduciary)
(4) 2nd marriages with separate children
(5) Pre-marital agreements
When dealing with a client with diminished capacity, focus on his ___________________, not __________________
Beware of ___________________
Look for ________________ that explain behavior
Look for ____________ changes
Decision-making abilities, not cooperativeness or affability
Ageist stereotypes
Mitigating factors
Long-term
What are examples of dementia-related behaviors?
- Lack of memory
- Repetitiveness
- Wandering
- Physical/verbal aggression/outbursts
- Disinhibited behaviors (sex drive)
- Problems sleeping
Under Rule 1.14(a), a lawyer representing a client with diminished capacity must maintain what kind of ACR?
A normal ACR as far as reasonably possible
Under Rule 1.14(b), a lawyer may take action on behalf of the client if the lawyer reasonably believes what 3 things:
The lawyer's action must be ____________, _____________, and ______________
(1) Client has diminished capacity;
(2) Client is at risk of substantial physical, financial, or other harm unless action is taken; and
(3) Client can't adequately act in his own interest
Reasonable, necessary, and protective
Under Rule 1.14, the lawyer can reveal confidential info about the client to what extent?
To the extent R necessary to protect the client's interest
In determining capacity under Rule 1.14, the lawyer should consider what 5 factors:
(1) Client's ability to articulate reasoning leading to a decision,
(2) Variability of state of mind
(3) Ability to appreciate the consequences of a decision,
(4) Substantive fairness of a decision, and
(5) Consistency of a decision with the client's long
What are 6 examples of protective action under Rule 1.14?
(1) Consulting with family members
(2) Waiting for clarity or to see if conditions improve
(3) Using voluntary surrogate decision-making tools (e.g. POA)
(4) Professional services
(5) Adult protective services
(6) Seeking appointment of guardian or GAL
In making a decision to take protective action under Rule 1.14, the lawyer should consider what 5 factors?
(1) Client's wishes and values
(2) Client's best interests
(3) Goals of intruding into client's autonomy to the least extent feasible
(4) Maximizing client's capacities, and
(5) Respecting the client's family and social connections
Attorney can consult with a ________________ to determine capacity (when appropriate)
Diagnostician
Who makes the final call about whether client has capacity?
Lawyer
What are the 4 general conclusions an attorney can reach about whether to represent a client with diminished capacity, and in which situations can a lawyer proceed with representation?
(1) Client has no diminished capacity --> can represent
(2) Client has mild diminished capacity, but no substantial concerns --> can represent
(3) Client has more than mild, or substantial, diminished capacity --> may need to consult with professional bef