In a very recent post, I discussed the pitfalls inherent in bartering for legal services. Hazards exist. So like with most things lawyers do, we are guided, inspired and restrained by our sworn obligations to the lawyer’s canon of professional ethics. See Bartering for bad food is o.k. but not for sex.
A cabin for legal work?
A lawsuit just filed this week in Tennessee gives form to the juncture of ethics and hazards. The vulnerabilities are sizably more substantial than just bargaining one’s trade for a score of mediocre meals at a bad restaurant.
The Tennessee case involves an octogenarian couple’s longtime lawyer, Fletcher Long. The couple is suing Long because they say he wrongfully took title to their waterfront cabin.
Long defends himself by saying he simply executed instruments to get himself paid for prior uncompensated legal services. Said another way, instead of receiving monetary compensation for his legal work, Long took a barter payment, which was the elderly couple’s waterfront cabin. But the question is, was there a meeting of the minds? See http://is.gd/5iKUE
Now bartering legal services for property, even real estate is not unheard of. There’s even a lawyer in Kansas City, Mo. bartering for a Harley-Davidson. See Legal Services for ???And\ In L.A., there’s another lawyer who will barter for remodeling services. See Attorney will swap legal help for remodeling help.
Entitlement rears its ugly head.
But human nature being what it is, for Fletcher’s sake, it’s hoped the cabin case is ultimately distinguishable from other cases where lawyers rationalize an unprincipled exchange of services for a client’s goods.
In the more egregious cases, it isn’t barter at all. Instead, it’s a grievous misconduct excused under a wrongdoer’s tortured sense of entitlement.
This past April for instance, out of Washington D.C., the now disbarred lawyer Reginald “Reggie” Rogers was convicted of cheating his elderly clients out of an estimated $571,000.00. Among the former lawyer’s victims was one Hattie Mae Goode. Rogers became “like a son” to the elderly widow. But in his court filings, Rogers argued that he was at least partially entitled to some of his clients’ money because he had gone “above and beyond his duties as an attorney” by “cleaning their homes, cleaning up their excrement, and in providing hospice services.”
Unfortunately, for Rogers, the “I’m entitled to it” defense was unpersuasive. He was sentenced to almost 5 years imprisonment. See Former lawyer bilked elderly clients of big sums of money.
Additional concerns representing elderly clients.
But apart from cases involving outright exploitation, bartering can be problematic even though it’s generally permissible. For example, when dealing with elderly clients, a lawyer has to have a heightened awareness and scrupulous diligence of the potential ethical concerns. This increases exponentially in the context of estate planning legal services.
The first is obvious. When dealing with elderly clients, the prudent practitioner has to make sure the client still has their wits about them. Do they know, understand, and appreciate the consequences of what they are doing?
The second ethical minefield isn’t always as obvious. It’s the potential problem of conflicts of interest. While conflicts can be a broad problem, for example, when it confuses who the actual client is. In this context, I focus on testamentary gifts to the elderly client’s lawyer. ABA Model Rule 1.8 (c) is on point:
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
Some jurisdictions, for example, California’s Probate Code requires that any such instrument gifting an interest to the client’s lawyer be reviewed by an independent attorney “who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue
influence, and (3) signs and delivers to the transferor an original certificate” of independent review with a copy delivered to the drafter. (See California Probate Code Section 21350-21356 )
Finally, as for the waterfront cabin lawsuit, while at first blush, it sounds in contract, I still wouldn’t be surprised if the ethical implications attendant to the legal services don’t also weigh heavily on the court. Long’s former clients are both in their mid-80’s. And some of the work Long did for them involved their estate.