Bar Counsel Notes: Dealing with Unrepresented Person

Question:

Attorney represents an elderly woman for estate planning concerns. Attorney drafted and client executed a Power of Attorney (POA), a Trust and a Will. Client’s designated agent is nephew. Nine months prior to the execution of the estate planning documents, nephew consulted with Attorney on an unrelated matter involving a real estate dispute with his sister. Although the two briefly met to discuss that dispute, nephew did not hire Attorney and Attorney did not acquire any confidential information about nephew. More recently, nephew has called Attorney’s office to report that he needs counsel, as he is now under criminal investigation for alleged theft of his aunt’s money. He has directed law enforcement to contact Attorney, since he has described her as “his Attorney.” She believes nephew has mischaracterized their consult and does not want him referencing her as his counsel. What should Attorney do?

Response:

Attorney should send nephew a firm letter informing him that he needs to engage his own counsel. See M. R. Prof. Conduct 4.3. That letter should remind nephew that his consult was limited to the real estate dispute with his sister. It should also inform nephew that despite the brief consultation, there never was an Attorney/Client relationship which formed between them. Finally, Attorney should reiterate that nephew’s aunt is the client of attorney and it is only the aunt’s interests which Attorney will protect. Attorney should inform client that nephew is now under investigation for misuse of the POA and urge client to revoke all fiduciary statuses previously granted to him, at least until the investigation concludes.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.