An experienced Massachusetts attorney was recently admonished by the Board of Bar Overseers (BBO) for steps he took to protect his client, steps he took without contacting her directly. (Admonition No. 17-06)
The lawyer, who is unnamed in the admonition, but who we'll call Lawyer A, received a call from another attorney who asked Lawyer A to turn over the client's files. The new attorney said that the client, an elderly woman, had now hired him. Lawyer A called the woman's daughter, who was named on her mother's durable power of attorney.
The daughter didn't know about any change of lawyers. After investigating, the daughter found out that her mother had recently transferred a substantial amount of money to another family member. She and Lawyer A agreed that the change of lawyers was a part of a scheme by the other family member to unduly influence the mother and get her to change her estate plan. Acting on this suspicion, Lawyer A advised the daughter to use the durable power of attorney to transfer out the remaining funds in the mother's personal account, which Lawyer A then held in his client funds account.
After several months, during which the Lawyer A represented the daughter and her siblings in an action for conservatorship, the mother and her new counsel were able to establish that she was competent and not under the sway of anyone's undue influence. Lawyer A returned the funds he was holding.
Lawyer A received the admonition in large part for not communicating with his client. The BBO recognized that Lawyer A was trying to protect his former client and thought that her capacity was diminished. In addition, once he realized that this was not the case, he promptly returned the funds he was holding.
However, he did not take appropriate steps, such as calling his client, to determine whether his belief about his client's capacity was accurate. In addition, in representing the children in seeking a conservatorship, he engaged in a conflict of interest with his former client. "Of greatest concern, however," the BBO said, "was the respondent's continued insistence throughout the hearing that he had done nothing wrong, signifying the potential for recidivism in the absence of some discipline."
In other words, Lawyer A didn't get it. You can't go off half-cocked advising an agent under a durable power of attorney to transfer your client's funds and bringing a conservatorship action against your own client without making absolutely certain that this is in your client's best interest. At the very least, you can pick up the phone and call your client. And it's not irrelevant that the daughter and her siblings have a clear conflict of interest if one of their goals is to protect their anticipated inheritance.