According to the National Council on Aging, 1 in 10 elders in the U.S. have experienced some form of abuse, yet only 1 in 14 is reported. It is a sad reality that there are elders in our communities that suffer from various forms of abuse. Financial, physical, and sexual abuse are common examples of the ways in which our older generation is exploited and endangered. Unfortunately, elder law attorneys are likely to encounter such a client at some point during the course of their careers.
Every lawyer is, or definitely should be, familiar with the Rules of Professional Conduct for the states in which they practice. A primary tenet of lawyering is the duty of an attorney to keep their client’s disclosures confidential. With that in mind, how does an attorney balance the need to keep client information confidential with a moral or legal requirement to disclose potential elder abuse?
Do the duties of confidentiality prevent disclosure?
All states have rules outlining an attorney’s duty of confidentiality. Each state has also created laws mandating the disclosure of elder abuse by certain groups of individuals and agencies. Some states even require disclosure by attorneys. Arizona, Mississippi, Montana, and Ohio specifically address mandatory reporting by attorneys. Other states, such as Rhode Island, Texas, North Carolina, and Utah simplify the list of mandated reporters by requiring “any person” to report. Other states do not include attorneys in the list of mandatory reporters. Even in states that require mandatory reporting, does this supersede the duty of confidentiality? Or, if the attorney cannot comply with both rules, must they withdraw from representation?
States attempt to balance the need for confidentiality with the vital need for disclosure. Oregon, for example, requires an attorney to disclose potential elder abuse to authorities – but, it provides exceptions for when the attorney would be disclosing certain privileged information or when the disclosure would be detrimental to the client. While helpful in preserving the duty of confidentiality, attorneys then find themselves in a complicated gray area in which they must untangle the bounds of what constitutes “privilege” or “detriment.”
Would an attorney ever violate the duty of confidentiality?
It is quite possible for an attorney to directly or inadvertently violate the duty of confidentiality owed to a client. It all depends upon the state’s specific statutes on reporting elder abuse, who is required to report, and under which circumstances. The National Center on Law & Elder Rights published a summary guide on how to approach the confidentiality-disclosure dilemma. In it, the organization suggests a multi-part approach to making the decision.
“Step 1: Is the person covered under the statute by age group?
Step 2: Is the client eligible for services based on age, illness, vulnerability, or disability?
Step 3: Are you a mandatory reporter under state law?
Step 4: If the client is covered under the statute, and eligible for services under the statute, and you are a mandatory reporter, what does the client want to do?
If the client wants to report, or is unable to make a choice, go to step 5.
If the client does not want to report, go to step 5.
Step 5: Is reporting in the best interest of the client when weighing the burden of reporting against the benefits? Will reporting leave the client in a better place than not reporting?
If yes, go to step 6.
If no, is there a legal or ethical reason for you to avoid reporting?
Step 6: Are there ethical restraints on you reporting?
If yes, don’t report.
If no, explain to the client what you must do and why, and report. Help the client minimize undesirable consequences.”
These directions will help attorneys avoid potential violations of the duty of confidentiality – particularly when disclosure was not actually necessary or appropriate.
What kinds of abuse should practitioners look out for?
There are endless examples of abuse. As mentioned above, elder abuse often comes in the form of financial, physical, or sexual abuse. Other abuses include abandonment, neglect, and psychological mistreatment. Signs of abuse are often difficult to distinguish from developing dementia or other cognitive deterioration. Becoming reclusive, anti-social, or fearful of others could be indicative of either abuse or loss of mental acuity. Remember that not all abuse is inflicted by people – some abuse is perpetrated by institutions as well. Some thought-provoking indicators of abuse for attorneys to look for are:
- A caregiver who insists on being present or prevents others from seeing the client alone;
- Unusual injuries, especially those symmetrically on both sides of the body, or restraint marks;
- Suicide attempts;
- Domineering caregiver behavior toward the client;
- Deteriorating health – looking dehydrated, malnourished, etc.;
- Unsanitary or unsafe living conditions – the client may mention the lack of heat or running water at home;
- A sudden decrease in the client's bank account, a new person on the account, unusual or unexplained spending;
- Suspicious changes in estate planning documents;
- An institution withholding appropriate care; or
- An institution overcharging/double billing.
It is also prudent to watch a caregiver’s behavior. If a caregiver grows increasingly more stressed with the care of the client, it is reason to watch for potential signs of abuse. Elder abuse, especially by caregivers, does not always begin right away. Instead, abusive situations often develop over time. The stress and resentment associated with overwhelming care needs is a prime situation in which abusive relationships can arise.
Recognizing signs of abuse can be challenging. Some indicators are glaringly obvious, where others are quite subtle. Attorneys often rely upon gut instinct and the sensation that there is something deleterious going on behind the scenes. It is also very important for those reporting abuse to do their due diligence in scrutinizing the situation, as to not erroneously make claims of abuse.
What are some suggestions for the lawyer to both help the client and not breach ethical duties?
Just as with many areas of lawyering, weighing options is a challenging task for practitioners. Practitioners are expected to accurately forecast the consequences of each decision and to select the best option. Unfortunately, sometimes the best option then is not always the best option after all. Knowledge of state law on disclosure is imperative to avoiding a breach of one’s ethical duty to their client. Statutory guidance will assist practitioners in determining if they should, must, can, or cannot, disclose client information. The specific circumstances at hand will then guide the lawyer to making an educated, good-faith, determination for what to do. If the lawyer has gone through the steps and is still unsure what to do, contact the state’s ethics hotline for guidance.