IN THIS LAWYER’S OPINION: A T&E LAWYER’S ROLE IN PROTECTING THE VULNERABLE CLIENT

By Warren A. Sinsheimer, Esq.^*

The following is a guest opinion piece intended to solicit dialogue about an important issue that regularly confronts California Trust and Estate lawyers. Any views expressed are the views of the author only, not the views of the State Bar of California or the Trusts and Estates Section of the State Bar of California or its Executive Committee.

For many years, the question of what a California attorney could do to assist a vulnerable or impaired client has bedeviled many members of the California Bar. Discussion and debate of this issue has consumed considerable energy among the members of the Executive Committee of the Trusts and Estates Section of the State Bar of California (the "T&E Section"), at least as far back as the time when the Section’s book, Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel, (House and Ross, eds., 1997) (the "Ethics Guide"), was being written.

Chapter VII of the Ethics Guide provides a useful summary of the state of the law as it existed in 1997. In short, California law imposes strict duties of confidentiality on attorneys. There is no meaningful exception which would allow the attorney whose client, or former client, has "lost it" or is being taken advantage of by others, to take steps to protect the client if those steps would involve disclosure of client confidences or if those steps would involve taking steps (such as initiating a conservatorship proceeding) to which the client does not consent.