Who Is Your 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