Legal ethics is a subject about which reasonable minds sometimes differ. After all, legal ethics are not a statement of universal morality; they the rules lawyers must follow to avoid discipline. Georgia and Tennessee (as well as most states) have adopted a version of the Rules of Professional Conduct. One reason the public doesn’t understand legal ethics is because the rules allow (and once representation begins, require) lawyers to protect bad people (e.g., criminal defendants). Although outright dishonesty usually violates the ethics rules, lawyers can leverage (and unless disclosure is required under Rules 4.1 through 4.4, can actually hide) confidential information for the benefit of a client which renders a result the public believes is unfair. For example, a lawyers representing a buyer is under no obligation to tell the seller that someone else would pay more than his or her client offered.
Lawyers serve various roles. “As a representative of clients, a lawyer performs various functions. As an advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as an evaluator by examining a client’s legal affairs and reporting about them to the client or to others.” ABA Model Rules of Professional Conduct, Preamble, Comment 2.
A major criticism of the present legal ethics framework is that it was written by litigators, for litigators. See Fleming, Elder Law Answer Book 2nd Edition Q 2:3 (Aspen Publishers 2004). Still, whether the current ethics framework “make sense” in today’s environment is largely irrelevant because adherence to the rules is mandatory; lawyers who don’t follow the rules are disciplined.
More often than not, Elder Law Attorneys are planning to avoid litigation so they act as advisor, not as advocate (at least, not in the litigation sense). “Elder law attorneys frequently find themselves trying to help clients get as close to their legal goals as possible, in the face of family, medical, religious, or social concerns about the propriety or advisability of the client’s chosen course of action.” Fleming, supra.
The real-world ethical model in the elder law context should (but doesn’t) more closely mirror the model used in medical ethics. In Principles of Biomedical Ethics, Beauchamp and Childress state that medical ethics requires application of the principles of autonomy, nonmaleficence and justice (loyalty and fairness). Calling their model ‘Principlism,’ Beauchamp and Childress state:
medical ethics begins, initially, with diagnosis of the medical condition, respect for patient autonomy, application of the principles of beneficence, nonmaleficence, and justice (loyalty and fairness). These ‘principles’ form a framework within which particular cases (moral problems) are analyzed. They are not “rules” per se “because prima facie principles do not contain sufficient content to address the nuances of many moral circumstances.
The reason real-world elder law more closely mirrors the medical ethics model is explained in the preamble to NAELA’s Aspirational Standards. “Given the dynamic and evolving nature of elder law and special needs law, attorneys should and often must represent their clients holistically… [They] often represent clients who have diminished or lack of capacity. Family members and other persons with fiduciary responsibilities also may be involved.”
Among the basic rules, Lawyers must use diligence when representing a client, must avoid conflicts of Interest and must safeguard client property held by the lawyer. Lawyers must communicate with clients regarding their case and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The ethics rules require lawyers to maintain a normal client-lawyer relationship, to the extent reasonably possible, even when a client has diminished capacity. When a lawyer reasonably believes a client has diminished capacity and is at risk of substantial harm, either physical or financial, the lawyer “may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” Rule 1.14(b).
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