Left in Attorney's Waiting Room?

Would it be polite for an attorney to keep family members of an elderly client in the law firm's waiting room, and not invite them into the conference room with the client? Maybe not; but it might be the ethical thing to do under certain circumstances.

The reasons are explained in an informative brochure published by the American Bar Association entitled "Understanding the Four C's of Elder Law Ethics", made available online here (PDF format, 2 pages, 2003).

The brochure explains -- with reference to four "C" terms -- why an attorney might need to meet with a client alone, if certain issues arise regarding:

• Client identification,
• Conflicts of interest,
• Confidentiality, or
• Competency.

These concerns -- and the ethical rules that govern attorneys' conduct -- derive from ethical duties to the client, and not to the client's family members.

The ABA pamphlet references the ABA's Model Rules of Professional Conduct. In particular, its Rule 1.6 ("Confidentiality of Information") applies. Further resources are made available here by the ABA's Center for Professional Responsibility regarding attorney-client relationships and ethical considerations generally.

The same basic principles apply to attorneys licensed to practice law in the Commonwealth under the version of such rules developed & adopted by the Pennsylvania Supreme Court -- the Pennsylvania Rules of Professional Conduct. These Rules, as amended as of December 30, 2005, are available in PDF format here (92 pages). The Rules are also available in HTML format as published in the Pennsylvania Bulletin, as 204 Pa. Code § 81.4, "Rules of Professional Conduct", found here. Pennsylvania's Rule 1.6 ("Confidentiality of Information") is found here.

The PA Rules are enforced by the Disciplinary Board of the Supreme Court of Pennsylvania. Its informative website is found here.

Update on 12/21/06:

On December 20, 2006, Stanley Rule, of British Columbia, Canada, who authors the blog "Rule of Law" (previously linked in this blog's sidebar), commented on my post above, as follows:

Pennsylvania lawyer and Professor Neil Hendershot, in a post entitled "Left in an Attorney's Waiting Room," writes, "Would it be polite for an attorney to keep family members of an elderly client in the law firm's waiting room, and not invite them into the conference room with the client?"

His answer? "Maybe not; but it might be the ethical thing to do under certain circumstances."

In my practice I sometimes have awkward moments when I explain to a client and his or her family that I need to meet with my client alone to discuss a power of attorney, estate planning, or other legal matter. Many people do not deal with lawyers frequently. Some may feel a little nervous in meeting with a lawyer for the first time. They do not know what to expect. They may prefer to have a family member with them for support.

* * *

I have acted in lawsuits involving challenges to the validity of wills. In these cases one party may allege that the testator did not have the capacity to make the will, or that someone unduly influenced the testator. In such cases, the most important evidence may be the evidence of the testator's lawyer. If other family members who may take a benefit under the will were always present, the lawyer's evidence may be of little or no benefit to those seeking to uphold the will.

See his full post here.

Update on 01/03/07:

The subject of this posting engendered further comment by Leanna Hamill, who authors the Massachusetts Estate Planning & Elder Law Blog, in her posting on January 2, 2007, entitled "Why Am I In the Waiting Room?". She concludes by providing a link to this posting.