Friday, March 6, 2015

Is it enough to require lawyers to report to law enforcement if their clients are exploited?

The Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC) discussed a possible addition to the ACTEC commentary to the ABA Model Rules of Professional Conduct, providing guidance for when a lawyer may report financial exploitation to law enforcement.  Most states' statutes require reporting elder abuse, neglect, or exploitation (which I will reference collectively as abuse).  The question is whether a lawyer may comply in light of the lawyer's duty of confidentiality.  If the abused elder is the lawyer's client, it would appear that the lawyer's focus should turn first to Rule 1.14(b) and the requirement to take action if a client suffers from diminished capacity, and is at risk of substantial physical, financial or other harm.  These actions can include pursuing guardianship.  Certainly, if an attorney becomes aware that his or her client is the victim of ongoing abuse, neglect, or exploitation, the lawyer must act.  In many states, including Oklahoma, a report to law enforcement may be inadequate to protect the elder.  (Lack of training and resources often result in either no action or incorrect action by Adult Protective Services or District Attorneys.)  In short, mandatory reporting is only a small part of the protective scheme that is needed for vulnerable adults.