COURT HOUSE – New Jersey’s Professionalism in the Law Day, a designated day in federal and state courts for attorneys and judges to receive training on ethics and professionalism was celebrated Oct. 14. The Cape May Bar Association offered a seminar on Estate Planning Ethics and Professionalism. Correspondingly, the Cape May County Bar brought experts in the field to discuss the subject including the Honorable J. Christopher Gibson, J.S.C., the Honorable Louis J. Belasco, Jr., P.J.M.C., Alan Gould, Esquire of the Law Office Alan Gould, P.C., Anthony La Ratta, Esquire of Archer & Greiner, P.C., and Assistant County Counsel for the County of Cape May, James B. Arsenalt, Jr., Esq.
County Surrogate Susan Sheppard conducted the discussion of experts, which was open to area lawyers. These courses are mandated for lawyers to continue their education. Sheppard said that her 20 years of practicing as a lawyer and her current position as Surrogate provided her examples that occurred in her office that were unclear and needed discussion among the bar members. She said that they were dealing with “grey areas.” The lawyers discussed hypothetical cases, surety bonds for guardians, covering the amount of the estate, fair billing in guardian cases, etc.
Hypothetical cases were presented for review, and experts elaborated on them. For example, when you have a joint will for a married couple, you need to ask some questions. Who is the client? Ethical considerations of attorney/client and conflict of interest was explored.
The first case posited an elderly couple coming into the office for estate planning. Their names are Doris and Ed. Attorneys commonly prepare Wills and Power of Attorney for both parties. Is this proper? The question was posed: Do you meet with Doris and Ed separately or together? If you prepare the documents, do you give them the originals? Furthermore, assume that one day, Ed admits he has had an affair and an illegitimate child ensues. Doris does not know. Ed wants to leave some money from the estate to the child. Must you tell Doris about the child? Do you continue to represent both Ed and Doris?
The lawyers reviewed the classic definition of attorney-client privilege which was articulated by John Henry Wigmore: “Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purposes, made in confidence by the client, are at this instance permanently protected from disclosure by himself or by the legal advisor, except the protection may be waived.”
The lawyers were reminded that there should be no secrets among jointly represented clients. You may ask that both parties have their own lawyer, representing their own interests. The problem may be that the case becomes paralyzed by what the first lawyer finds out. A middle ground suggested was that the lawyer would share all material information, but withdraw from the entire proceeding if any client balks at such sharing. All attorneys should be warned to make it perfectly clear to their clients in a joint representation situation that no communication between client and counsel can be considered confidential as to the other client.
Questions arose about clients with diminished capacity. The lawyer should, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. However, if the lawyer believes that the client is at risk of substantial physical, financial or other harm, unless action is taken, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and in appropriate cases, seek the appointment of a guardian ad litem, conservator or guardian.
Jim Arsenault suggested that the lawyers consider Adult Protective Services, with county social services. “We need to think about these things in the abstract, we need to remind ourselves of what our duties are for clients in general,” Arsenault said. “We all know these things. Sometimes, in the middle of the fray, we don’t stand back and are not objective enough. We need to know how to understand our obligations. We use casebooks that we work from. Each year in law school, we take five or six courses, on civil practices, family, estate planning, and we need to know these things. This is a refresher, we sit back from the fray, and think about what can come up.
“Today there are more students in law school than lawyers walking the planet. Lawyers generate lawsuits. The practice of law is not about justice. The practice of law is about advocacy. You have to convince people. We have a guidebook to follow. The lawyer has to police himself,” Arsenault said.
Lawyers are instructed to have four refresher courses per year, for which they get credit.
To contact Barbara Beitel, email bbeitel@cmcherald.com.
Cape May – Caryn Elaine Johnson AKA Whoopi Goldberg did what she always does lies. She lied that a bakery wouldn' t serve her because of her race. This was a complete fabrication damaged their reputation…
