Gullible

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”?

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6 Comments

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6 responses to “Gullible

  1. Tempus Poenae

    Documentation is my hero. I have done wills where I’ve walked away saying, “Yep. That one is going to get challenged by SOMEONE.” And that’s okay! The kids have a right to do that. I just always make sure that it’s abundantly clear, in notes or TM or wherever it’s useful to document, that I did what I believed the decedent wanted me to do.

  2. Jo

    WOW. That’s crazy tough.

    Also, interested in the confidentiality thing. I’ve been working in the mental health field for years and I still wonder if I’m allowed to discuss situations (without naming names or identifying markers) from years ago. I know people who do and it makes me slightly nervous. I still have that “what if they can hear me?!” feeling. My first real job they told us a story (I worked at a residential treatment facility for youth where they had to do physical restraints occasionally to prevent harm) about a worker who had to do a restraint, went to a bar with her friend and described the situation with no identifiers but there were parents visiting their kid at the facility from out of town in the next booth who were horrified. She was fired.

    Balance that with getting commiseration and advice and being able to ‘own your experiences’ like Dan Savage says–I feel like I’m just in a minefield. Think you handled it really well though!

  3. I don’t have the same issues with undue influence, but I feel you on how hard it can be to read people and worrying that you’re being sold a story. I run into this all the time with my students — I *want* to believe s/he spent the weekend in the hospital with hir sick mother and that’s why s/he didn’t turn in the assignment, but …

    I figure we all get better at this stuff as things go along. The trick is not to become cynical after you’ve been bitten once or twice.

    • vadoporroesq

      I have never lied to a professor about why an assignment is late or why I did poorly. I also notified all of my teachers at the beginning of the semester when my grandfather was dying, and when we took him off life support on the first day of exams, none of them had a problem giving me an extension on my assignments. I have always been grateful for that kindness, so I would try encouraging your students to tell you in advance if they are facing difficult family situations. The really honest ones will alert you, and the lying ones you can give not-quite-as-generous an extension to. Or ask for a doctor’s note.

      • Yeah, I’d rather let a lazy student (who probably won’t get a great grade anyway) slide on a late penalty than punish a hardworking student in a tough situation. But sometimes I wonder if I’m teaching the lazy ones bad lessons, you know?

  4. Wow, that is an extremely tough situation to deal with. I’m proud that you worked through things without jumping to any conclusions and made the client feel comfortable. I can’t give any advice but to say that the kind of work you do must be hard, so I’m sending hugs.

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