THEY ARE MY PARENTS – why am I asked to leave the room?
It is quite common in the practice of elder law for adult children to make the initial contact with the law firm and come in for consultations with their parents. As attorneys we always need to be cautious of our relationship with our clients. We must first identify who will be our client, the parent or the child. It is usually the parent and if it is, then we need to have a confidential conversation with only our client in the room. This means that we ask the other family members or friends to leave the room. Depending on the issue(s) that will be discussed, it is also not uncommon to invite family members back into the room for some or most of the discussion. The reason you are asked to leave is to protect your parents.
After identifying who our client is and the issue, we must then protect the attorney-client privilege. The privilege only exists between the attorney and the client, not the family. Therefore, to have a confidential conversation with the client with another person present, while the attorney and client can never be required to disclose the content of the discussion or even the fact that there was a discussion, the other person in the room, who is not a client, can be required to disclose it thereby eliminating the privilege. Again, depending upon the issue(s) the client may choose to waive the privilege and allow the family to join them in the consultation. This waiver does not allow the attorney to go around disclosing the discussion, but the presence of the family puts the confidentiality of the discussions at risk.
Third, sometimes, depending on what the issue is, there are potential conflicts of interest between the client’s interest and the child’s or children’s interest. In these situations it is important that the attorney convey to the client what these conflicts are and the potential ramifications of their actions should they decide to take them. The perfect example is the parent who comes in and says “I want to transfer my house to my children.” On its face, it is a simple request, but the ramifications of such a transfer can be devastating. For some of those ramifications I refer you to a Blog I previously wrote entitled “Should I transfer my house to my kids?”
The discussion itself, depending on the child or children may be a touchy one that if done with the child in the room may cause the parent to not be as honest as they need to be with the attorney in fear of hurting their child’s feelings. Many times the attorney can offer alternative “compromises” that may fulfill some of the client’s wishes while still protecting their interests. It is important that we have the client’s undivided attention when explaining their options so they understand the options and can make an informed decision.
Finally, as attorneys, we have to make sure our client is competent. They have to understand what is going on, not only in the immediate discussion but also within their lives and the consequences of their actions. Competency usually becomes evident simply by their engagement in the conversation about the issues because most times the issues are fairly complicated and would cause someone lacking the ability to understand to struggle with understanding the discussion.
In summary, do not be offended that you were asked to step out of the room so that your parent can meet with the attorney alone. It is not done to build a wall between you and your parent, but rather to protect our client’s,your parents’ interests. This is known as the “Four C’s” of elder law ethics—client identification, conflicts of interest, confidentiality, and competency.