Let’s Get this Right: “Who Is Your Client?” in Elder and Disability Law

In the last few months, I’ve been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs.  But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of “who is my client?” and “do I have a conflict of interest?”

A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving “older” clients.  In the first matter, what I call the classic elder law issue of “who is my client” is at the heart of the problem.  The decision emphasizes that just wanting to keep the “client safe” is not a defense to a conflict.

In this matter, the attorney in question “began to provide legal services for … a 93-year-old woman who claimed that she was being held against her will in a nursing home.”

The lawyer became concerned about the client’s “financial welfare, … confusion and disorientation,” and  therefore “applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer’s-related memory loss.”   

As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting “a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available.” 

However, the attorney then had the client “sign a durable power of attorney” and the POA appointed the lawyer as her agent.  Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.

Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay “her own fees of more than $18,000 without first obtaining the court’s order.”

The Ohio Supreme Court affirmed the Disciplinary Board’s finding that representing both the woman and her niece in a guardianship  violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest.  Further, the Ohio Supreme Court agreed with the Board that the attorney’s use of the POA to pay her own legal fees while the guardianship application was pending was improper.

The full opinion is well worth reviewing, especially as the second matter leading to the lawyer’s suspension from the practice of law involved the attorney billing for legal services plus “non-legal” services she performed as an agent under a POA for an older man whose “extended family was either unwilling or unable to assist in his care.” 

The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a “good job” and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney’s overbilling, charging “approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man’s] beloved Jaguar.”