Ethics and Elder Law

Presented by Richard Mayberry to audience of Virginia lawyers in live seminar, CLE, first presented in 2009, also parts presented 2011. see generally Virginia State Bar Ethics Rules 1.14:

Elder Law Ethics

The elder law attorney may have to represent spouses when there are children from a prior marriage or the spouses’ interests are conflicting. In certain situations, a divorce may be part of Medicaid planning. In this instance, the attorney will not be able to represent both spouses. Actually, the American College of Trust and Estate Council (ACTEC) contemplates the possibility of a separate and independent representation of each spouse in the context of estate planning. But note that there is a significant controversy as to whether this approach is viable. 

When representing a couple, the attorney should assess the duty of each spouse toward the other and the ability to carry out their instructions. Pre- and Post-marital agreements, contract to make wills, and rights under pension plans should be reviewed. In addition, duties toward third parties should be reviewed such as child support, parental support, obligations or rights to or from prior spouse and others by agreements, prior divorce decrees, or arising under compensation or retirement plans. 

The attorney will need to explain the potential conflict of interest and how it can be resolved. If a joint representation fails, the attorney may reserve the right to continue to represent one client in the matter or related matters. The basis of longstanding relationship with one of the clients may impact the dual representation. The attorney needs to clearly stipulate whether it is a joint or separate representation or whether only one individual is represented. In the case of joint representation, the attorney needs to address the possibility of a future prohibition on the lawyer’s representation of either one of the spouses. Finally, the attorney needs to inform the clients of the impact of gaining knowledge regarding either spouse, as well as the attorney’s duty to inform each spouse on certain matters. The attorney should incorporate the following disclaimer in the engagement letter and request a waiver of conflict of interest: 


“It is common for a husband and wife to employ the same lawyer to assist them in planning their estates. You have taken this approach by asking me to represent both of you in your planning. It is important to understand that, because I will be representing both of you, you are considered my client, collectively. Ethical considerations prohibit me from agreeing with either of you to withhold information from the other. Accordingly, in agreeing to this form of representation, each of you is authorizing me to disclose to the other any matters related to the representation that one of you might discuss with me or that I might acquire from any other source. In this representation, I will not give legal advice to either of you or make any changes in any of your estate pplanning documents without your mutual knowledge and consent. Of course, anything either of you discusses with me is privileged from disclosure to other parties, except (a) with your consent, (b) for communication with other advisors, or (c) as otherwise required or permitted by law or the rules governing professional conduct. 

If conflict of interest arises between you during the course of your planning or if you have a difference of opinion concerning the proposed plan for disposition of your property or on any other subject, I can point out the pros and cons of your respective positions or differing opinions. However, if actual conflicts of interest do arise between you, of such a nature that in my judgment it is impossible for me to perform my ethical obligations to both of you, it would become necessary for me to cease acting as your joint attorney.” 


“Each of us has read the foregoing letter and understands its contents. We consent to having you represent both of us on the terms and conditions set forth. We each authorize you to disclose to the other any information regarding the representation that you received from either of us and any other source.”

Who is the Lawyer's Client
Uncover Confidentiality and Conflict Issues

Usually, in an elder law practice, the elder person is your client even if you, as the attorney, have been initially contacted by another individual such as an adult child. A disclosure of whom you are representing should be made at the earliest possible time or, at the latest, during the initial client conference. 

The engagement letter should set forth the scope of the services to be performed by the firm and any matters that may be excluded from the legal services. Most importantly, the responsibilities of the attorney and the client should be clearly established in writing, identifying who is represented by the attorney. Confidentiality and conflict-of-interest issues should be clearly explained. 

When several generations are involved in the planning, a Disclosure of Conflict of Interest and Release of Information need to be signed by the client(s). In addition, the attorney should lay out the content of the relationship with family members that are not primarily represented. The attorney should address the issue about what kind of information that the attorney will accept to share. The attorney should establish his/her position in case the attorney subsequently acquires knowledge that the plan of one client may adversely affect the interest of another client. 

Under Rule 1.14, when an attorney finds not only that the elder client is incompetent but “reasonably believes that client is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the attorney may take reasonably necessary protective action.” In order to take action, the attorney may have to disclose information regarding the client. 

Rule 1.14 provides that the attorney is impliedly authorized to disclose relevant information about the client but only to the extent reasonably necessary to protect the client’s interest. see Virginia State Bar Ethics Rules