Student Attorneys and Confidentiality Questions

A question that routinely comes up in the Elder Law Clinic setting where students are representing impaired elder clients is whether the student attorney’s ethical obligations toward such clients are the same as they are in any lawyer-client relationship, particularly with regard to confidentiality and third-party presence.

Here are some suggestions from Kate Mewhinney at Wake Forest:

• “To Speak or Not to Speak:  Effect of Third Party Presence on Attorney Client Privilege” by Roberta K. Flowers, in the NAELA Journal, Vol. 2, No. 1, 2006 suggests that if a third party’s presence is necessary in order to facilitate lawyer-client communication, the client may not be said to have waived his/her right to confidentiality;
• The caregiver might show the student-attorney some basic ways of assisting the client, and then the caregiver can step out into a nearby lobby (assuming this is medically safe). 
• If the matter involves a potential conflict of interest with the caregiver or the chance that undue influence would later be alleged — is the client considering leaving assets to the caregiver or is the client considering appointing the caregiver to be a medical or financial agent — perhaps a different person could come into the interview room to assist, if direct hands-on help is required at every moment.
  

The bottom line is that the student-attorneys (and all attorneys, for that matter) need to figure out what the client needs in order to feel safe and receptive to the attorney.  That might require — at least for a portion of the interview — the presence of a third party.  Students should be aware of that possibility, and the ethical implications of making a choice to invite someone in to the interview.  But being aware of the ethical implications does not mean not doing it.  It simply means doing it in such a way that both the client and the attorney feel comfortable.