A Preliminary Legal Guidance Report ^sm  Is An Evaluative,  Preliminary Legal Study Based Report That Can Help Multiple Parties Within A Family To Begin To Understand And Then Resolve The Key Legal Question(s) At Issue Within An Estate and /or Elder Care Transition Matter In Conflict Or Potential Conflict .

Preliminary Legal Study Basis

The prospect of a significant dispute or conflict exists concerning complex and often contentious estate and elder care transition related issues such as : the incapacity of a family member, the least restrictive form of intervention, the allocation and administration of care taking, compensation and future costs to family members and others for that care giving, the administration of finances by family members and others , family held business issues, the potential cost of future health care , a mentally or physically challenged adult child, the transfer out of a family home,  the transfer and allocation of assets to one or more family members , financial disparity among heirs , financial dependency of others upon the incapacitated family member, multiple marriage families , revocable and irrevocable trust issues , etc.

A lawyer is required to be impartial between commonly represented clients. Thus, when the relationship between the parties in an estate and elder care transition matter has assumed contentiousness or antagonism, representation of multiple clients is improper because it is unlikely that the lawyer can maintain impartiality. See Pennsylvania Rules Of Professional Conduct 1.7. Comment (29)

Even where there is no direct adverseness, a conflict of interest exists if a lawyer is asked to represent several individuals .  Such lawyer is likely to be materially limited in his or her ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. See Pennsylvania Rules If Professional Conduct 1.7. Comment (8)

Further, attorney-client privilege and client-lawyer confidentiality rules often do not provide the appropriate framework for individual family member interests to become adequately considered in many estate and elder care transition related situations involving joint or common attorney- client representation.  The need to keep each client adequately informed and yet maintain confidentiality of information related to the representation of each client can be quite difficult. Continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Pennsylvania Rules Of Professional Conduct 1.7.Comment (31) citing Pennsylvania Rules Of Professional Conduct 1.4

Additionally, since there is no actual attorney-client privilege concerning communications between each of them and their common attorney in such situations, any confidential communication between each of the clients and that common attorney is not easily accommodated. The prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications. See Pennsylvania Rules Of Professional Conduct 1.7. Comment (30)

As a result of these client-lawyer confidentiality and the attorney-client privilege implications , the hidden desires of such multi-party clients are seldom adequately disclosed in the presence of one another or the attorney, forcing the attorney to work with incomplete information and potentially incorrect assumptions.

On the other hand, suggesting separate legal representation is not necessarily the answer. As lawyers in individual client relationships would need to strictly maintain client confidences and represent one individual against another , this option likely does not serve the interests of all the parties in multi-party client situations as readily as a lawyer serving those parties as an evaluative third party neutral . Such lawyer endeavors to impartially research, study, analyze and evaluate the parties’ varied legal interests concerning the particular key legal question at issue in the conflict matter in order to develop and propose a preliminary legal research, study, analysis and evaluation based guidance report , or preliminary legal guidance report  ^sm , for the common group.

A lawyer serving as a third-party neutral within a family group does not represent any particular family member as a lawyer-client service provider. See Pennsylvania Rules Of Professional Conduct 2.4(b). Rather, that lawyer is serving the group as an evaluative,  third-party neutral , customer service provider . Thus, the protection of a client-lawyer relationship and the attorney-client evidentiary privilege does not exist with respect to the provision of such services . See Pennsylvania Rules Of Professional Conduct 2.4(b). Comment 3.  Accordingly, as a third party neutral lawyer does not have an equal duty of loyalty to each family member as would a lawyer-client service provider , each family member does not have a client’s right to be informed of anything bearing on the representation that might affect that family member’s interests and each family member does not have a client’s right to expect that the third party neutral lawyer will use such information to that particular family member’s benefit. Therefore, third-party neutral lawyer-customer service can be provided to the group even if one or more family members ask the lawyer not to disclose to other family members information relevant to the particular conflict matter.

Working through the key estate and elder care transition question (s)  at issue within an actual or potential conflict with an impartial , neutral lawyer who is trained in legal research study, analysis and evaluation and who is knowledgeable concerning estate and trust administration, property management, health care , personal care , disability, insurance, and private and public resource legal issues can help families to understand and amicably resolve family impacting issues in conflict while preserving good estate and elder care transition planning.

The third-party neutral lawyer may consult with many family members in order to develop a more complete picture of the family’s needs and perspectives, conferring on a confidential basis with each person, asking tough questions and challenging rigidly held views. As each person in the family knows he or she can speak confidentially with the lawyer acting as a neutral and evaluative mediator-consultant , that lawyer can bridge the communication gap by increasing the probability of fuller disclosure. Only information that is authorized to be disclosed by each person will be shared with others.

An evaluative,  third-party neutral lawyer consultant can help the parties clear up areas of ambiguity and guide them towards a course of action based upon an impartial research,  study , and analysis based evaluation of each of their legal interests concerning the key estate and elder care related question(s) at issue within a conflict or dispute. Ultimately, a written  preliminary legal guidance report  ^sm  concerning the key question(s) at issue can be composed and then sent to all parties.

The proposed course of action or guidance is preliminary for three basic reasons : A. The report is narrowly focused upon only particular, key question(s)  at issue within a larger estate and elder care transition related matter consisting of multiple questions at issue  B. The report is based upon incomplete and non- litigated facts concerning the question(s) at issue  C. The reporting service role is not to advocate or argue on behalf of a client or customer position; rather, the preliminary level guidance is geared to be based upon an impartial research, study, analysis and evaluation of the legal considerations relevant to the specific key question(s) at issue within a larger estate and elder care transition related conflict/matter consisting of multiple questions at issue.

The goal is to provide service recipients with a written, clear explanation of an impartial, research, study, and analysis based evaluation of the legal considerations that found or support the suggested preliminary level legal guidance concerning the key question(s) at issue within a particular conflict or dispute matter . Thus, a  preliminary legal guidance report ^sm   service can be tendered as an evaluative , mediating service than can help service recipients begin to make well informed, understanding and wise decisions concerning the resolution of their particular conflict or dispute.

As the preliminary legal guidance report ^sm contains preliminary and non-exhaustive guidance about the specific key issue(s) in conflict or potential conflict, the individuals receiving the report should seek reliance level legal advice and assistance concerning the final evaluation and implementation of any suggested action plan from an attorney acting as their lawyer- client service provider. Such report can be reviewed by the attorney to support him or her in the preparation and implementation of a sound estate and elder care transition related plan for his or her clients.  As common representation by a lawyer is permissible where the clients are generally aligned in interest even though there is some difference in interest among them, the lawyer may then seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis , seeking to resolve potentially adverse interests by further developing the parties’ mutual interests. See Pennsylvania Rules Of Professional Conduct 1.7. Comment (28)

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If you and/or your family members have an important, key legal question or questions at issue within an estate and/or elder care transition related matter in conflict or potential conflict,  consider obtaining an evaluative,  preliminary legal study based preliminary legal guidance report ^sm ,  under a written, flat, no guidance support – no fee scope of engagement ,  as either a lawyer – client service in an individual service engagement or as an ancillary,  lawyer- customer mediation support service in a multi – party service engagement.