Two rules around the practice of law can sometimes come into conflict.
- Everyone has the right to be represented by a lawyer.
- Lawyers may not solicit client.
What should a lawyer do when they are told that someone in a nursing home needs a lawyer? Should they wait for the nursing home resident to call them or go to the facility to meet with the prospective client and see both whether they are competent to hire them and whether that’s what they would like to do?
Drama on Martha’s Vineyard
This is the dilemma faced by Attorney Daniel J. Larkosh of Martha’s Vineyard when he was contacted by the out-of-state daughter of an elderly woman living in a nursing home on the Vineyard. She thought that the mom was a victim of elder abuse and in 2016 had been induced by undue influence to transfer her home on the Vineyard to another daughter. In 2018, the daughter paid Larkosh a retainer, but in his disciplinary proceeding he testified that his understanding was that the mother was to be his client.
Larkosh and the daughter met in person in 2019 when the daughter had come to visit her mother. The daughter told Larkosh that although the mother had some dementia, she was competent. Larrkosh tried to find a doctor to do a competency evaluation of the mother, but was unable to do so,.
At the daughter’s suggestion, Larkosh went with the daughter to visit the mother to determine himself whether she was competent and wanted to retain him for any purpose. He asked the daughter to leave the room so he could meet with the mother alone.
The next day, Larkosh received an email from the attorney that the mother had used for many years, informing him of the other attorney’s representation and asking him not to further contact his client. Despite receiving this email, Larkosh prepared a fee agreement and returned to the nursing home to meet with the mother. The goal of the representation was to arrange for the mother to return to her home from the nursing home.
When he met with the mother, he showed her the email from her prior attorney and asked if he still represented her. She told him that he did not.
Things then got quite heated when an employee of the nursing home saw Larkosh meeting with the mother with legal documents to sign and called the local police. After a heated argument, Larkosh and the daughter left the facility without the mother having signed the fee agreement.
To further complicate matters, the daughter had also paid Larkosh to represent one of the mother’s former caregivers who was tried for having stolen from the mother. The plan had been for the mother and two caregivers to go on a cruise together. The mother had paid all the fares. When subsequently she had fallen and could no longer go on the cruise, the caregivers went anyway on their own.
After the visit to the nursing home went down, the daughter pursued an action against her sister. She asked Larkosh to represent her, but he declined.
Discipline
In handing down a public reprimand of Larkosh, the Board of Bar Overseers finds that the daughter was always his client. They say that once he had received the email from the the mother’s prior attorney Larkosh should have talked with him before proceeding. It’s the second visit after having received notice that the mother was already represented by counsel that violated the Massachusetts Rule of Professional Conduct 7.3(a) bar against solicitation.
They explain that “the rules prohibit lawyers from taking advantage of people, many of whom are in a vulnerable situation and without the experience or sophistication to make a sound judgment about hiring counsel. . . . As articulated in section (b)(3) of the rule, the drafters were particularly concerned about vulnerable clients.”
The Board finds that Larkosh was aware that the mother had diminished mental capacity. “He went so far as to request evaluations from two doctors, both of whom refused his request. On both visits to the facility, he observed his future client’s demeanor. She appeared confused about what a lawyer and a legal action could
accomplish for her.”
They say that the other lawyer’s email “was a flashing yellow light to proceed with caution. Rather than doing so, Larkosh sped ahead.” They conclude:
In sum, it was not reasonable for Larkosh to believe that he was dealing with a person
competent to hire him. He lacked a reasonable basis to believe that Roberts had the capacity to
request a lawyer. Because of this, his meetings with Roberts on July 2-3, 2019 were in-person
solicitations, which Rule 7.3 prohibits.
The Board handed down a Public Reprimand although two dissenting members argue that Larkosh should have received a three-month suspension, arguing that the vulnerability of the potential client along with Larkosh’s leel of experience argues for a more serious sanction:
We are concerned that a private admonition fails to treat seriously the risks the sanction is intended to
penalize. We are concerned that an admonition would fail to deter misconduct and would send
the wrong message to the public.Therefore, we would impose nothing less serious than a public reprimand for a single,
unvarnished violation of Rule 7.3. Starting from that presumption, we confront here a lawyer
with years of experience and – more concerning – an elderly and vulnerable client.
Guidance for the Future
Balancing the right of everyone to representation with the bar to solicitation can be difficult. There are many people who due to some incapacity or their living situation cannot take affirmative steps to hire an attorney even though they may be in great need of representation.
Fortunately, the Board of Bar Overseers does not find Larkosh to have been at fault for his first visit with the nursing home resident. However, a little more guidance on this would be helpful. To what extent can attorneys, when informed that a potential client may need representation, take steps to determine whether that is what the individual wants and whether they are competent to engage counsel?
Larkosh’s appears to gone too far in part because he got embroiled in a family dispute. His mistake was believing entirely the version of events of the one sister who engaged him. This is surprising because he has been in practice for more than three decades. While a new attorney might be expected to believe what they’re told at face value, a more experienced attorney will have had many experiences of learning the whole story only after becoming deeply involved in the matter.