By Patrick Emery Longan
Fordham Law Review
December 2001

Reviewed by Loree Cook-Daniels

Should a lawyer be responsible for reporting a fiduciary client’s misbehavior? That’s the subject tackled by Patrick Emery Longan in the December 2001 Fordham Law Review article, “Middle-class Lawyering in the Age of Alzheimer’s: The Lawyer’s Duties in Representing a Fiduciary.”

Noting the rising number of elders with Alzheimer’s Disease and the wealthiness of these children of the Depression, Longan believes that many adult children seeking legal help with guardianship and other decision-making tools will be sorely tempted to misappropriate funds. This, in turn, leads to ethical dilemmas for the lawyer, who “may hope that he or she will be able to prevent or rectify harmful actions by a caretaker and may fear liability if he or she does not do so.”

Unfortunately, existing rules of professional conduct send mixed messages to lawyers, who on the one hand must keep confidential conversations with their guardian/clients and on the other hand “may have an obligation to prevent or rectify the guardian’s misconduct.”

Longan describes six possible options lawyers can use to prevent financial abuse by a fiduciary:

• Counseling the guardian/client that an action he or she proposes is a “breach of fiduciary duty, a fraud, a crime, or all three.”

• Quietly withdrawing from representing the guardian/client.

• “Noisily” withdrawing from representing the guardian/client by notifying others the lawyer has withdrawn, hopefully thereby provoking them to investigate further.

• Giving lawyers the option to disclose the plans of the guardian.

• Mandating that lawyers disclose plans.

• Giving lawyers the responsibility of investigating and discovering wrongdoing by their clients “or face liability to the ward for the failure to do so.”

Longan reviews the pros and cons of the six options and concludes, “Only a rule of mandatory disclosure of planned malfeasance, backed up by the threat of civil liability for keeping quiet, will enable the legal profession to render an admittedly difficult but necessary service to our aging population.”

A single copy of this article can be ordered by sending a check for $1.80 made out to CANE-UD (order File No. A451-9) to the Clearinghouse on Abuse and Neglect of the Elderly (CANE):
CANE
Department of Consumer Studies
University of Delaware
Newark, DE 19716
(302) 831-3525
CANE-UD@udel.edu