ABA Journal.com recently posted an article entitled, “Staff of Reclusive Heiress Coerced Her Out of $44M in Gifts, Executor Says,” regarding an action brought against nurses, doctors, a hospital, a lawyer and an accountant for reclusive heiress Huguette Clark claiming they coerced or influenced her out of more than $44 million in gifts. I know nothing more about the facts of the case and whether or not Clark was unduly influenced by these people. However, the article raises some issues addressed here previously and at least one that has not yet been the focus of a post here, although it is discussed extensively in The Empowered Paralegal: Working with the Elder Client.
One previously discussed issue is the role of a paralegal as a “watchdog” both in general and with regard to practices within ones own law firm. That is, it is incumbent upon the professional paralegal to see can be seen and sometimes notice what is not there to be seen, make an appropriate record and when necessary “do the right thing.” Another is how a paralegal should handle ethical violation on the part of an attorney.
Not previously discussed and thus the focus here is the danger that legal professionals might unduly influence their clients without intending to do so. Consider this excerpt from Working with the Elder Client:
Avoiding unintentional undue influence by the legal professional
The importance of the various methods of making advance decisions is that the client can make the decision that best suits their own beliefs. Having a living will or an advanced health care directive does not compel a client to choose an approach in opposition to their own beliefs. It simply allows them to make the decision rather than leave it to someone else, someone who may not share their beliefs. Establishing a “fair” estate plan, must be done using the client’s conception of fairness, not ours.
We must be careful in discussing these options with clients that we do not judge their decisions or let them feel we do not approve of their decision. As noted previously, the elderly, especially those who are seriously ill, can be particularly vulnerable to outside influences. While many people become less concerned about what others think of them as they grow older, some others suffer from loss of a sense of self that can make them more susceptible to such influence. Our role is to assist the client in determining and effectuating their wishes, not to judge, shame, or persuade the client to our way of thinking.
It is often difficult to gauge our own prejudices and the way they affect our demeanor and approach to client. It is important that we reflect carefully on our own preferences. For example, it is my belief that options for making decisions regarding end-of-life healthcare can be arranged in a descending order, i.e., that the first is better than the second, the second better than the third, and so on.
I view these options as belonging to one of three categories. In the first, the client makes as many health care decisions for himself in advance as he can and designates someone to make only those decisions which were not anticipated in advance. In the second, the client makes no decisions in advance except the designation of the person or persons who will make necessary decisions on her behalf. Finally, there is the option of taking no action. In this instance, the client should understand that taking no action is itself making a decision. The client decides to allow someone designated by state law to make the decisions on her behalf. However, throughout the discussion we must keep in mind that the paralegal’s role is to inform (and for the attorney to advise), not to convince or persuade, a client even unintentionally…
As discussed extensively in Working, it is often difficult to tell when a client is being unduly influenced by outsiders. It can be even more difficult when we ourselves are involved, even when that involvement is nothing more than the very provision of legal services for which our clients have turned to us.