Assume that your supervising attorney has a new client coming in, Mrs. Security. Mrs. Security is a wealthy 90 year old woman. Her daughter, Ms. Freeload, has made the appointment and has indicated that she will pay the attorney’s fees in the matter. The reason that Mrs. Security wants to come in (this is according to Ms. Freeload, who made the appointment) is that Mrs. Security wants to leave all of her possessions to Ms. Freeload, excluding her two other children.

Do you see any conflict issues here?
Your supervising attorney has asked you to draft a memorandum to him regarding this. He has asked that you identify any issues, and the applicable precedent that should guide him. Are there any things that your supervising attorney must do at this meeting? Explain in your memorandum.

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Memorandum

TO: Supervising Attorney

FROM: Associate

RE: Security/Freeload matter

This matter concerns the potential conflict of interest that exists with the Security/Freeload matter. Ms. Freeload has sought to hire this firm as attorney for her mother, Mrs. Security, for the drafting of a Will (or codicil to existing Will) to ensure that her estate upon her death passes to her daughter, Ms. Freeload, and disinherits Mrs. Security’s two other children. Ms. Freeload indicates that her mother seeks to leave her the entire estate. She also indicates that she will be paying the legal fee for this representation. According to the following, special precautions and actions should be taken should this firm decide to represent Mrs. Security, in order to comply with Pennsylvania’s Rules of Professional Conduct.

The first issue to deal with is rule 1.8 of the rules of professional conduct, specifically section (f). Section (f) provides:

Rule 1.8.Conflict of Interest: Current Clients: Specific Rules.

(f)A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1)the client gives informed consent;

(2)there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3)information relating to representation of a client is protected as required by Rule 1.6.

Thus, the attorney must discuss this with Ms. Security to determine if she accepts the fact that Ms. Freeload wants to pay for her legal fee, despite the fact the Mrs. Security is well able to pay for it herself. He can suggest to Ms. Security that if she prefers, she can pay for it herself. She certainly can afford it, so why put Ms. Freeload in the middle and create the additional duty of complying with 1.8 and other ethics rules? However, if Mrs. Security wants her daughter to pay the legal fee, and this firm accepts that as so, the attorneymust also ensure that Ms. Freeload is and remains entirely outside of the representation. See (f)(2), above. The importance of this duty is also emphasized in Rule 5.4 and also by virtue of Rule 1.6 (see below):

Rule 5.4.Professional Independence of a Lawyer.

…

(c)A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

He should ensure that all meetings, including the first, are private with Ms. Security and that he provides no reporting to Ms. Freeload. Ms. Freeload clearly has interests in the outcome, yet she is not the attorney’s client (see below comment regarding Rule 1.7 and note 27 thereto), and should therefore be excluded from the representation. This will also help in ensuring that attorney-client privilege of confidentiality is maintained (as per Rule 1.6, below).

If Ms. Security is not mentally incapacitated from making decisions pertaining to her estate, he can have private meetings with her and only her, determine what she really wants, and act accordingly. Does she really want to disinherit her other two children? If so, why? Is she being manipulated by Ms. Freeload? One can presumably be competent yet susceptible to manipulation and trickery.

Note 11 to Rule 1.8 provides additional guidance:

(11)Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend... Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer’s professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).

Here, fortunately, it does not appear that the Attorney or this firm will have an interest in allowing any interference by Ms. Freehold, should she pay. Not only is her payment likely not necessary for the representation, since Mrs. Security can pay for her own legal fees if she desires, but the outcome of the matter does not effect the Attorney’s interests in anyway.

If the Attorney finds that Ms. Security lacks capacity, he has additional options to ensure she is protected, as per Rule 1.14.

Rule 1.14.Client with Diminished Capacity.

(a)When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b)When the lawyer reasonably believes that the client has diminished capacity, 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 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.

(c)Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Thus, under 1.14, he may seek to have the court appoint a GAL or conservator to look out for Ms. Security’s interests and ensure they are being met in an unconflicted manner.

Also, under Rule 1.7, the attorney must determine and clarify who he is representing, and make that very, very clear – is it Ms. Security? Her Daughter? Or her Estate whereby he owes a duty to the beneficiaries?

Note #27 of Rule 1.7 provides that:

“… conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer’s relationship to the parties involved.

Here, it would appear that if he is drafting Mrs. Security’s Will or Codicil, his client is, in fact, Mrs. Security and all duties are to her and no one else, including the duty of Confidentiality, as required under RPC 1.6:

Rule 1.6.Confidentiality of Information.

(a)A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

...

Thus, this emphasizes that the Attorney should not be including Ms. Freeload in his sessions with Ms. Security, even if she does not pay the legal fee.

In conclusion, there is no prohibition against handling this matter for Mrs. Security, nor for allowing Ms. Freehold to pay the legal fee, so long as all precautions and requirements noted above are complied with. If the Attorney or firm finds it safest, it may even seek to have Mrs. Security pay her own legal fee, and if Ms. Freeload seeks to pay, she can make a private arrangement with Mrs. Security to do so. This may best ensure that no appearance of impropriety or actual conflict should arise, in the even Mrs. Security does knowingly and consensually wish to leave her entire estate to Ms. Freeload, and disinherit her other children.