Just Say No
An elderly client contacts you by telephone and asks you to do a codicil to her Will. She tells you that she wants to disinherit her two children and leave everything to a caretaker. The client shows up at your office with the caretaker. The caretaker insists on speaking for the client and does not want you to meet with the client alone. You explain to the caretaker and the client that you will need to meet with the client without the caretaker present. When you speak with the client, she seems confused about why she is there. She can’t remember her home address. She just knows that her caretaker told her that she needed to come and talk to you about changing her Will.
A situation like this was recently shared with me by a partner in one of our insured firms. The partner said that an associate in her firm was approached by an elderly client who seemed to be suffering from serious dementia. The client wanted the associate to make some revisions to her Will. After the associate declined the representation, the client called the firm to complain about the associate’s actions. The associate was concerned that the firm would be upset with her because she had turned down a representation that would have generated revenue for the firm. She was pleasantly surprised when the firm told her that she had made the right choice.
Lawyers are frequently asked to perform tasks and pursue strategies and courses of action that challenge ethical obligations. As advocates for our clients, we are charged with zealously representing our clients’ interests. Clients depend on us to help them manage their business and personal affairs, advocate for their rights, and defend their interests. But we must do this within the bounds of the Rules of Professional Conduct. That must guide every decision and action we take on behalf of clients. When a client requests actions that violate these rules, a lawyer’s duty requires them to decline such requests.
When you succumb to pressure from a client to do something that is ethically precarious, you not only expose yourself to the risk of State Bar disciplinary action, but you also increase your risk of a malpractice claim. And when you say no to a client because the ethics rules require you to say no, you will be protected if the client asserts a malpractice claim against you based on your refusal to comply with the client’s request. In Wilkins v. Safran, 185 N.C.App. 668, 649 S.E.2d 658 (2007), the Court of Appeals made clear that a lawyer shall not have liability to a client where the lawyer acts out of mandatory compliance with the Rules of Professional Conduct.
In the matter above where the associate did not believe that the client had capacity, the associate was ethically obligated to decline the representation. Our State Bar has said that a lawyer may not prepare or preside over the execution of a will where the lawyer reasonably believes that the client lacks capacity. If the lawyer were later sued by beneficiaries or heirs of that client, the lawyer could assert as a defense that she acted out of mandatory compliance with the Rules of Professional Conduct.
So, the next time you are asked to do something that crosses an ethical line, just say no. Even though you might disappoint your client and you might lose a fee, you will preserve your reputation and avoid a grievance.
