Your phone rings. Being a solo or small firm lawyer, you answer it yourself. The caller, after an exchange of pleasantries, says, “My mom needs a trust.”
The flag that goes up in your mind should be, if not red, at least a healthy yellow. The caller has just raised the most basic question a lawyer can face: Who is the client?
It’s common for family members or friends to initiate the estate planning process for a loved one. They usually have the best intentions. But they also usually are unaware of the professional duties that an attorney owes to a client.
It’s your task to explain these duties—to the client and, as needed, to others—and to follow through on them. In particular, it’s important to carry out the duty of confidentiality.
This can be harder than it sounds. Your client may be an elderly parent who is accustomed to having an adult child take care of various tasks, from medical appointments to cable television hassles. Your client may feel dependent upon, or want to please, an adult child. (Note: Questions of fraud, elder abuse, and lack of capacity are beyond the scope of this article.)
Whatever the circumstances, the State Bar Act makes clear your duty of confidentiality: “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (California Business and Professions Code section 6068, subdivision (e)(1).) There is an exception in the California Rules of Professional Conduct, which permit you to disclose a client’s confidential information with the client’s informed consent. (Rule 3-100, “Confidential Information of a Client.”)
So, if your client tells you she would like her adult child to attend a meeting with you, or join on a phone call, you must explain your duty of confidentiality to her and inform her that she must consent to the disclosure of her confidential information if her daughter will attend the meeting or call. (Practice tip: Obtain this consent in a signed writing.)
If you keep your client in mind, the ethics will follow.
About the author:
Chris O’Connell has a solo estate planning practice in North Beach. He is a member of the Executive Committee of the Solo & Small Firm Section.