May 26, 2010
Who Is The Client?
A recent admonition is summarized on the web page of the Massachusetts Board of Bar Overseers:
In June 2007, the respondent met with a long-standing client and her mother. The client informed the respondent that her mother was terminally ill and her death imminent. The two women informed the respondent that they had reached an agreement that they wanted the respondent to memorialize concerning a house the mother owned.
The respondent understood that his client had agreed to let her mother live with her and that the client would fund a trust for the children of the mother’s other daughter in return for the mother’s transfer of her home to the client. The mother’s home was then uninhabitable.
The agreement that the respondent drafted called for the client to fund the trust within two years and had no practical means for enforcement. In addition, the agreement had no provision requiring the client to have her mother live with her or remedy for the mother if she did not. The client paid the respondent a minimal fee for drafting the agreement.
The respondent failed to clearly explain to the mother that he was not representing her interests. The mother reasonably believed that the respondent was providing legal services to her as well as to her daughter. The mother did not understand that, without a provision in the agreement requiring her daughter to have her live with her, her interest in living with her daughter or in having her daughter provide similar care was not protected. The respondent should have known that the client’s mother might have misunderstood his role as the client’s lawyer only, but he did not make reasonable efforts to correct her misunderstanding and did not advise her that the only advice he could give her was the advice to retain counsel.
By August 2008, a dispute arose between the client and her mother. The client’s mother was forced to move from the client’s home. In October 2008, the client sold the property. The client’s mother died in January 2009.
The respondent’s failure to explain his role sufficiently to the client’s mother when he reasonably should have known that she misunderstood his role in the matter violated Mass. R. Prof. C. 4.3(a).
This is kind of misconduct that should be covered in any law school ethics class. I'm sure most of us describe situations just like the one presented here in explaining the responsibility of an attorney to make clear who is or is not represented in a transaction. Where the non-client is elderly and infirm, there is the enhanced possibility for manipulation and abuse by the attorney and the client. (Mike Frisch)
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