Adapting Unitary Principles of Professional Responsibility to Unique Practice Contexts: A Reflective Model for Resolving Ethical Dilemmas in Elder Law

Abstract

Despite the professional irresponsibility and criminal conduct by the lawyers acting on behalf of Brooke Astor’s son, the exploitation of elders in the mortgage industry, and the exploding problem of financial exploitation of elders, lawyers will always be faced with situations that demand discretion, analysis, and hard choices. This article provides a conceptual model to guide ethical analysis and help attorneys navigate ethical dilemmas that arise when representing older people and their families. Lawyers must apply norms of professional conduct within a murky landscape of human frailty and emotional turmoil in an atmosphere permeated with the dread of mental incapacity, the possible need for long-term care, and the inevitability of death. It is essential for attorneys to make thoughtful discretionary decisions involving clients, conflicts, and multiple representation within a framework that values problem solving and preventing litigation, but also understands the central role of litigation, and seeks to serve the client most effectively within both contexts.