The Ethics of Intergenerational Representation

Because the family plays a central role in most estate-planning decisions commentators and courts have sought to develop ways of defining a lawyer's ethical obligations in representing elder clients who seek estate-planning advice. These new views of legal ethics emphasize the fact that clients may not merely seek to further their own individual interests but, rather, may seek advice from an attorney about what is best for their family as a whole. In this Article, Professor Col-lett analyzes the four types of representation that are available to elder clients who seek estate planning advice. individual representation, representation as an intermediary , joint representation, and family representation. She analyzes the benefits and difficulties that accompany each of these options. Next, Professor Collett critiques family representation, and she concludes that this form of representation may be inappropriate because it eliminates the lawyer's accountability to individual family members who seek representation. INTRODUCTION E VERY lawyer engaged in estate planning or elder law recognizes that family is a central element in the lives of most people. It has been suggested that families, not individuals, are the fundamental building blocks of society. 1 Caring for family members, both during and after life, is a high priority of many clients. 2 This is true whether the lawyer represents a parent or an adult child or some combination of family members. Yet the rules that govern lawyers' conduct are largely pre-mised upon an understanding of clients as single, perhaps even isolated, individuals.' Duties of loyalty 4 and confidentiality 5 run only to the "cli-ent." In many jurisdictions only the "client" has standing to sue for inju-("What has changed is not the belief that the family is a building block of the larger society, but the prevailing picture of the larger society itself."); Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations , 104 Harv. L. Rev. 1835, 1845 (1991) ("The family receives the protection of substantive due process because it is an irreducible building block of a free society."). ("Property is used to keep the family together at least as much as the family is used to keep the property together."). ries resulting from an attorney's negligence. 6 Legal and ethical consideration of the interests of "non-clients" is limited largely to avoiding deceitful or fraudulent practices. 7 Yet estate planners and elder law specialists regularly counsel individuals who expect the lawyer to …