20

Imagine a situation where the client in a case is an elderly lady who is forgetful and completely inexperienced in the law and she relies on her son to help her with a legal case. The son engages an attorney and pays for the attorney, but the old lady is technically the "client" since she is the party to the case.

The lawyer then ignores the son, and communicates only with the old lady and tries to get her to agree to things or only reports his actions to the old lady. The apparent attitude of the lawyer is that since the lady is the client, he need only answer to her and in matters of judgement, all that matters is his (the lawyer's judgment), not that of the son, even though it is the son paying the legal fees and the lady relies completely on her son for legal and business matters.

What is the right procedure for this situation? How should it be handled from legal and diplomatic standpoints?

2
  • 14
    Son should perhaps consider seeking power of attorney he wants control of this case.
    – Jasen
    Aug 26, 2022 at 23:38
  • 7
    You have what looks like very important information (such as the mother perhaps not being legally competent) you've hidden in the comments on the answers. You should edit this question to put it in the question itself or you're likely to get answers that don't actually answer your real question, but the one you wrote.
    – cjs
    Aug 27, 2022 at 11:09

5 Answers 5

62

This is a very common situation, and -- assuming this is happening in the United States -- it is pretty clear that Attorney is behaving exactly as he should under the Rules of Professional Conduct.

Mother is the "technical" client and the "real" client. Son is not a client in any sense; he is merely a person paying the bills.

If Mother wants to involve Son, she can do that on her own, but Attorney is prohibited from disclosing his privileged communications with Mother and from substituting Son's preferences/judgments for those of his client.

If Son does not like what the lawyer is doing, he can encourage Mother to direct Attorney to change course, or Son can inform Attorney that he will stop paying for Attorney's services.

1
37

The lawyer then ignores the son, and communicates only with the old lady

This is proper and normal. The "old lady" is the client. The son is not the client, nor is he a member of the mother's legal team. So it would violate the rules of ethics for the lawyer to tell the son much of anything. The mother can explain things to the son if she wishes, but that might defeat confidentiality and jeopardize certain kinds of privilege, so the lawyer should advise her on how to do this properly.

and tries to get her to agree to things

What things? While it is possible for a lawyer to ask a client to agree to something that is not in the client's legal best interest, that would be malpractice, and a good lawyer should not do that regardless of who the client is. On the other hand, it is quite common for lawyers and their clients to agree on legal strategies, and there is nothing unusual or suspicious about that.

or only reports his actions to the old lady.

As above, this is proper and normal.

even though it is the son paying the legal fees

He can pay the fees if he wants to pay the fees, but that doesn't make him the client.

and the lady relies completely on her son for legal and business matters.

Does the son have power of attorney, a conservatorship, or any similar legal arrangement? If not, then this is none of the lawyer's concern, and that's the end of the matter. If the son is a conservator, then he probably does have some right to appoint and direct legal counsel on behalf of his mother, but this is the sort of thing that really should be hashed out up front, when the lawyer is first hired. You don't spring a conservatorship on a lawyer after they've already been engaged and done substantive work on the case.

1
  • 8
    +1 for the Power of Attorney point. If mother wants son to look after it, the first thing that should happen (in England&Wales anyway, and assuming no pre-existing power of attorney) is that mother should instruct attorney to draw up a limited power of attorney (scoped to the legal matter in question) to allow son to act as her attorney and deal with the matter on her behalf.
    – abligh
    Aug 26, 2022 at 16:34
14

Similarly, suppose a legal aid society pays for the criminal defense of someone. Defendant proclaims innocence and lawyer thinks the case is winnable. But the legal aid society "gets cold feet" and asks the lawyer to get the client to plea bargain to guilty. Now what?

Let's look at the Rules of Professional Conduct*.

Rule 1.8: 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.

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
[and none of these mention the person paying, or mention money at all]

So it's there in black and white.

The lawyer is not allowed to discuss the case with the son. The lawyer is also not allowed to allow the son to manipulate the case.

The rules are clear that the son talking to the attorney is fruitless. The son needs to talk to the mother. Only by the mother's direction can the son be included in the legal work.



* The ABA is the American Bar Association, the primary trade organization of lawyers. These are the Model Rules of Professional Conduct, which is a "Model Law" written by a nonprofit, with an eye toward states adopting it as their state law. Many states have.

4
  • 2
    See also the rule for a client with diminished capacity. "[3] The client may wish to have family members or other persons participate in discussions with the lawyer." There is also advice to a lawyer with such a client.
    – Wastrel
    Aug 26, 2022 at 16:36
  • 1
    @wastrel good point, and even, hypothetically a lawyer could find themselves with a duty to protect the client from the payer. I could even see that as causal to hiring the lawyer: guy has a family member with diminished capacity but a lot of money, bad guy wants that money, bad guy figures "I'll hire them a lawyer but really be the lawyer's puppet master". For that you need a ...criminal... lawyer, in the Saul Goodman sense of the word. Aug 26, 2022 at 21:41
  • "Many states have." It recently became true that every single U.S. jurisdiction has adopted ethics rules with the numbering of the Model Rules although individual jurisdictions vary the language of some specific rules in the rule within the Model Rules on the same topic. Maine and California were the last hold outs, I believe.
    – ohwilleke
    Aug 27, 2022 at 1:33
  • @Harper - Reinstate Monica I am of the opinion that the attorney here, once he heard that his "real" client had issues with memory and focusing, should have declined or looked into the issue. I am not sure from the OP if the attorney met his "real" client when he was hired. I almost got into this mess when I practiced law, and told the guy that unless he was the guardian, I wanted to meet my client.
    – Wastrel
    Aug 27, 2022 at 22:36
8

Harper - Reinstate Monica, bdb484, and Kevin's answers are correct in that the mother is the attorney's client and the son is only paying the bills, but they don't address the part about the mother being someone "....who is forgetful and completely inexperienced in the law and she relies on her son...."

If the mother in this case is so forgetful and gullible that she needs her son to protect her from her own poor choices (as opposed to just disagreeing with her son on the best course of action), then this is a textbook case where the son should seek guardianship of his mother by petitioning the court to have her declared incompetent. If she is declared incompetent, then her guardian would have access to all of her legal records and would, most likely, be authorized to direct her attorney.

2
  • 2
    However, guardianship is serious business and serious work, and subject to serious scrutiny. So it's not a great way to slip underneath a will and abscond with their money before they decease. Really, the best you could hope (scam-wise)for is to move in with them "for caregiving" so you can stop paying rent and/or rent or airBnB your house. Aug 26, 2022 at 21:45
  • @RobertColumbia While it is possible that a guardianship or conservatorship could be obtained on these facts, it would be a pretty hard case in which to do so. Most such cases involve far greater deficiencies. There are also ethical rules for lawyers on how to deal with clients with partial disabilities as well.
    – ohwilleke
    Aug 27, 2022 at 1:31
2

Client (mother) should inform her attorney that all communications should be through or copied to her son.

If attorney does not comply with clear instruction from client (mother), "diplomatic" response is not appropriate: attorney should be replaced and complaint made.

Instructions should be made in writing if necessary.

If client (mother) is unwilling to give such instructions to attorney, son is SOL.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .