22 Pages Posted: 8 Jul 2010
Date Written: 2003
Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.
Special concerns arise when one or more of the family members is in a declining physical or mental state as a result of aging. In that instance, an attorney must be even more sensitive to representing all of his clients zealously and avoiding conflicts of interest between his clients. In a related vein, an attorney is often faced with a situation where an older person is brought to talk with the lawyer by a younger family member. Perhaps because of declining abilities, older clients are more likely than younger clients to be accompanied to the lawyer's office by family members. These visits can raise issues of joint representation and loyalty to the client. Even when the situation is not technically a “multi-generation” representation, the issue of “multi-generation consultation” can also raise professional responsibility concerns. This last concept has not been the subject of much discussion in the extant literature, perhaps because it is only partly addressed by the Model Rules of Professional Conduct.
This article will first examine the rules of professional conduct that govern multi-generation representation and representation of clients who may be impaired. It will then examine some of the case law dealing with situations in which multi-generation representation caused problems for both the attorney and the clients. Next, this article will explore the data about the aging process and loss of capacity with a focus on representing older clients. Finally, it will analyze several hypothetical situations with the goal of adequately representing clients' interests while avoiding potential difficulties.
Keywords: estate planning, elderly, family, financial interests, conflicts of interests, rules of professional conduct, multi-generation
JEL Classification: K10, K11
Suggested Citation: Suggested Citation
Dessin, Carolyn, Protecting the Interests of Older Clients in Multi-Generation Representations (2003). Family Law Quarterly, Vol. 38, 2004. Available at SSRN: https://ssrn.com/abstract=1635968