Tuesday, January 7, 2014
I love book stores, and at the AALS Annual Meeting the next best thing is the book publishers' booths. I always ask representatives about "what's new" in aging. This year the answer was a book I should have read already, especially as it is co-authored by Elder Law Prof Blogger Becky Morgan and her Stetson colleague, Roberta Flowers. It was great to have my new copy with me for my train ride home through the frozen mid-Atlantic corridor.
Their book, Ethics in the Practice of Elder Law, published in 2013 by the American Bar Association, is an important reference book for students and practitioners. It also strikes me as the kind of book that could support an entire day of CLE programming and discussion on professional responsibilities, not just for elder law attorneys but for lawyers in family or corporate practices, where there is a clear potential for questions of conflict of interest. The organization of the book is interesting, too, with short opening fact patterns and highlighted questions introducing each chapter. The topics include:
- Where to Go for Guidance
- Who Is the Client?
- Who Can I Talk To?
- Who Can I Represent?
- Representing Clients Who May Have Diminished Capacity
- Ethical Issues in a Guardianship
- Whom Do I Represent in Complex Fiduciary Representation?
- To Litigate or Not to Litigate - That Is the Question
- Ancillary Services and Marketing
That last chapter is a good example of an important discussion topic for practicing lawyers. One of the trends in U.S. elder practice is the one-stop shop, where a lawyer might also offer ancillary services or products, such as annuities used by families in Medicaid planning. The authors caution that an attorney must be careful to identify and carefully disclose whether the attorney has a "financial interest" in a service or product recommended for a client. Throughout the book, they provide state-specific sources of ethics analysis. For example, they cite and quote from state ethics opinions regarding various ancillary services or marketing practices (and it could be important to expand this topic in future editions).
Roberta and Becky also offer useful checklists and draft letters (including engagement letters); the paper-back text is accompanied by a CD-ROM.