I write about shoes because the hard part of lawyering is SO HARD to express. It turns out that lawyering is filled with professional responsibility landmines. I faced two today. I’m going to talk about one here.
Today, I had a client come in. This was my first experience in dealing with a terminially ill client. A client who had recently been diagnosed with Stage IV cancer and was already in hospice care. She was getting her affairs in order, was brought in by a non-family member, and wanted to figure out how to disinherit her family members in favor of the non-family member that brought her in.
This is the situation that every single Professional Responsibility textbook, bar prep question, and essay gives you. How do you spot undue influence? What do you do when the client wants something that is so clearly not in their best interest?
And, if you’re me, what do you do when all you want to do is make your terminally ill client happy and do what she wants in a way that makes sense, legally? What do you do when you want to throw caution to the wind and believe the crying client and the crying non-family member talking about what losers the family members are and how awful they are? I want so desperately to believe them, and I know people who are “like family” to non-family members, and I know people who got dealt a shitty hand when it comes to family. I want to believe that this non-family member is taking good care of her. I don’t even mind if he’s doing it in the hopes that she might leave him the house. If he really is helping her get her affairs in order and her family isn’t, then eff it. I think he should get the house or the car or the boat. She’s in an ugly situation, he’s there for her, her family isn’t, and I want to believe that this is in her best interest.
Yes, after about an hour, we came to a conclusion that I, as a professional, am comfortable with. We came to a conclusion that pleases the client, that doesn’t benefit the non-family-member by much, and that does require the non-family-member to do a considerable amount of work if he/she would like to see financial gain.
I am, of course, bound by confidentiality, to talk about this situation as broadly and hypothetically as possible. If any of my lawyer-friends think I’m revealing too much, please let me know. I’m still getting the hang of this. Also, what would you do in this situation? What nasty situations have you had regarding this kind of potential “undue influence”?