Posts Tagged ‘undue influence’

Being Too Influential

Monday, June 4th, 2012

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.

The Courage to Stop Elder Abuse

Sunday, March 6th, 2011

I do not normally reprint posts from other blogs in their entirety, but this one from ABAJournal.com is important and I don’t think they’ll mind:

Actor Mickey Rooney Says He Lacked Courage to Stop Financial Abuse

Actor Mickey Rooney told a congressional committee on Wednesday that for years he suffered in silence because he didn’t have the courage to seek legal help to stop a family member who was taking his money.

“If elder abuse happened to me, Mickey Rooney, it can happen to anyone,” the 90-year-old Rooney told the Senate Special Committee on Aging. Reuters, Bloomberg and the Associated Press have stories.

“My money was taken and misused. When I asked for information, I was told that I couldn’t have any of my own information,” Rooney said. “I was literally left powerless.”

Rooney didn’t identify the family member, but he has obtained a restraining order against his stepson, Christopher Aber, based on claims that Aber withheld food and medicine and took control of Rooney’s finances, according to the stories. Aber’s lawyer says the harassment allegations are false. A court has transferred control of Rooney’s affairs to a Los Angeles lawyer.

Rooney said Congress should pass legislation to strengthen enforcement in cases of elder abuse.

Bloomberg notes that securities regulators in 22 states are also trying to fight elder abuse by expanding a program that teaches medical professionals how to spot victims of investment fraud. The program is financed with corporate fines.

While program s teaching medical professionals how to spot victims of investment fraud are a great idea, I contend in Working with the Elder Client that the legal team is in the best position to protect elders from abuse: the medical team sees physical conditions, but knows little about the elder’s financial dealings; banks see financial transactions, but not physical conditions, etc. The legal team is most likely to have the access that can lead to awareness of elder abuse. As noted below, many clients are unable or unwilling to risk the repercussions of talking about abuse by caregivers upon whom they are dependent. It is not just a lack of courage.

It is not possible to deal in depth with this serious problem and the issues it raises for legal professionals in a blog post, here is an excerpt fromAs Working with the Elder Client that some of you may find helpful:

It is important that the legal professional know the legal definitions of elder abuse, mistreatment, and neglect set forth in statutes covering the jurisdictions in which they practice. It is equally important that the legal professional understand their legal obligations under those statutes and how those obligation relate to their ethical obligations. Finally, it is essential that the legal professional recognize the signs of abuse and neglect. Keep in mind that your elder client may be unable or unwilling to speak frankly about abuse they are experiencing, especially in the presence of a family member or other person who has assisted them in getting to your office.

Undue Influence

 

Undue influence is the most subtle type of mistreatment, and therefore the most difficult to detect. Since the elder person is unduly influence through fear, dependence, diminished capacity and other factors, the victim is unlikely to both willing and capable of reporting the abuse. Many will not even be consciously aware of the undue influence. This topic has been discussed in detail in previous chapters,[1] so here I will only list some of the signs that may indicate undue influence is being exercised over a client. These signs include:

  • The helper speaks for the client
  • The client repeatedly asks the helper to answer a question for him or her
  • The client consistently looks to the helper before answering a question
  • The client stops or changes an answer after the helper looks at, touches, or makes a movement towards the client
  • The helper frequently corrects the client’s answers
  • The helper refuses or is reluctant to allow the client to speak privately with the attorney or paralegal
  • The client appears confused or influenced by medication or alcohol.

None of these signs is definitive. Many elderly clients are confused; need help remembering, and the like. However, a legal professional should proceed with caution when these signs appear.

… it is my general practice to insist upon meeting separately with the client in any situation where there may be a conflict between my client and the person with the client. I apply this policy to parent/child and husband/wife situations as well as elder client situations. However, I do tend to emphasize it more in cases involving elderly clients, especially when a child is bringing in a parent to prepare a will, create a trust, or transfer property.

Generally, the logistics of this can be delicate as once the two are in the room it can be difficult and embarrassing for the client to ask that the agent leave. I handled this by taking the responsibility. I explain that it is my rule to ask the other person to leave at the very beginning of the meeting before there is any substantive discussion. I explain to both the client and the other person that I do this as a matter of policy so I can document the file for the benefit of all concerned, not because of anything related to their particular circumstances. The important thing from my perspective is (1) not to insult either the agent or the client by suggesting that the agent may be taking advantage of the client or that the client is not capable of independent thought, and (2) make it clear that I am the person responsible for this request, not the client. If an abusive relationship does exist, we do not want the abuser to blame the abused for this challenge to their dominance over the abused.

Once the other person is out of the room I look for changes in demeanor on the part of my client, ask questions intended only to determine competency, and inquire about the client’s relationship with the other person. Generally, the actual answers to the questions are not important. I am more interested in the client’s reactions, demeanor, and the way they respond.

All of the law office staff should be given a clear understanding of to whom they can speak regarding the client. If the agency is established for one member of the family, it does not extend to other members of the family or members of the agent’s family. For example, if a son is the agent, the staff should speak only to the son and not to the son’s wife. This is not an unusual situation. The son brings the parent into the office for the legal services, but depends on the daughter-in-law to carry on the dialogue with the law office because the son works during the day and the daughter-in-law does not. If it is necessary, formally establish the daughter-in-law as an agent, but do not begin “stretching” the agency beyond that which is formally established.

Paralegals as Witnesses

Thursday, August 13th, 2009

Paralegals called as witnesses in court proceedings seem to be cropping up in the news this week.  In one case a witness has denied meeting with a police detective. That witness will be testifying at a search warrant hearing as will “a paralegal who brought her to speak to police and another lawyer that was involved in the case.” In another the paralegal has been called as a defense witness in a murder trial to testify regarding an incident involving the murder victim. The report states:

[She] said on the stand that while she was analyzing jewelry at the couples’ Mocksville home as part of a court-ordered appraisal of the Turners’ belongings, Jennifer Turner shoved her after becoming upset that jewelry purchased before the couples’ marriage was also to be appraised.”Mrs. Turner was standing about 6 or 8 feet away and said, ‘I want you to leave now.’ And Mrs. Turner charged at me. She put her hands on my shoulders and shoved me back and said, ‘Get out!’ I was stunned,” McMullan said, adding that she was especially frightened since she was 18 weeks pregnant at the time.

Video of her testimony is available through the link.

While paralegals can go through their entire career without becoming a witness in a legal proceeding, it is not unusual and every paralegal should be aware that each event of their day could lead to their being called to testify. This means keeping good, comprehensive records of those events in each client file.

One difficulty is that on occasion what must be recorded is what didn’t happen, as in the story Silver Blaze in which Sherlock Holmes informs Inspector Gregory:

Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

Paralegals are not expected to record directly what did not happen. However, if one can show that records are regularly and comprehensively kept, the absence of a record becomes significant. For example, if a law office keeps a telephone log of every call that comes into the office, the absence of a call is evidence that none came in. This can be important when a client has filed a complaint or is claiming that you did not return a call. If you keep good records of your conversations with clients the fact that you did not record a statement can be evidence that you did not give the client the legal advice she now claims you gave.

There are some times though when you should actually be recording the absence of problems through records of what was present. For example in a will contest claiming either incompetency or undue influence, you may be called regarding the testator’s demeanor, state of mind, clarity and so on. Further, you may be called upon to testify many years after you actual interactions with the client. Thus, the file should, at least, reflect the absence of abnormalities. Better yet, it will reflect that you asked questions or engaged in discussions specifically intended to elicit signs of incompetency or undue influence.