How Far Should a Lawyer Go to Honor His Duty to a Client?

A man and a woman hold hands on top of a dining table.

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Lawyers have a duty to advise their clients of potholes in the road of which they might not be aware. As you will see, at times this becomes complicated, when “who is the client?” becomes a difficult question to answer.

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When the lawyer feels that a certain ethical course of conduct must be undertaken, but his wife — who is also his paralegal — disagrees, the stage is set for a conflict among friends and family, as you will see.

Retired teachers Helen and Ray (all names have been changed) are decades-long friends of lawyer Steve and Susan. Helen and Ray consider Steve to be their family attorney, while they have never signed a retainer nor has Steve charged for the occasional bit of legal advice. Both Helen and Susan are from an Asian country where face-saving and avoiding discord are cultural norms.

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Helen underwent total thyroid-removal surgery with an excellent outcome at a well-respected teaching hospital and returned home to be followed by her own physician, as these operations require close monitoring of important blood chemistries.

But she was not properly monitored, and several days after returning home, she began to hallucinate, lost consciousness, experienced hundreds of seizures and fell into a coma. Blood chemistries were obtained upon her admission to the hospital that were completely abnormal! Helen was the victim of gross medical malpractice.

She is now essentially in a vegetative state, and it is evident that she will require expensive skilled nursing care for the rest of her life. She is in her mid-70s, and her husband is in his mid-80s and basically in denial.

To add insult to injury, the local neurologist told her husband and adult children that she would never improve and recommended stopping life support. But then, her son said, “We were told to have the brain scans sent to physicians back East, and they said not to stop life support, so we did not.”

It is a decision that friends and other family members deeply regret.

Attorney Steve Advised Obtaining Medical Records at Once

When Helen was first taken to the ER, attorney Steve told Ray and their adult son, who never had an attorney-client relationship with Steve, “Get copies of the chart and all medical records now! This should not have happened!”

He also sent them a softly worded email saying the same thing and offered to refer them to a medical malpractice attorney. No response.

Two months later, he sent another email, urging the same, which upset Susan, who told him to leave them alone. Steve told her that he did not want to find himself in a position of being blamed — and sued — for their friends and children not seeking counsel or filing suit in a timely manner even if it was just to preserve the statute of limitations for medical malpractice.

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Steve believes that he has a duty to do what he can so they do not blow the statute or fail to get important records now and so they at least have a consult with a med-mal attorney. He wants to send them a more urgent email, but his wife again says, “Leave them alone!”

A Retired Medical Malpractice Attorney Shares Her Views

“Judy G,” a retired Los Angeles med-mal attorney, offered these observations. “Steve’s duty as a lawyer is to do what he thinks he is ethically required to do, rather than refrain because his wife doesn’t want to bother their friends. The question can be framed in terms of ‘what can I do to let them know what they risk if they don’t act?’ vs. ‘will this make Susan cranky?’ They need to be made aware of statutes of limitation for various actions, including possible wrongful death. So whether these horses want to drink the water or not, at least he’s trying to get them to the well.”

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Retired L.A. County Superior Court “M.A” offered his opinion. “Steve is volunteering legal advice when he says, ‘Get the chart.’ He sort of protects himself by sending an email offering to recommend a med-mal attorney. He should have added language like, ‘I may be a lawyer, but I cannot represent you in this situation, because I am not qualified to handle medical malpractice cases. But I think you need a medical malpractice lawyer, and if you want, I can give you some names.’

“To really insulate himself, he should go further and say something like, ‘Don’t wait around. Take action soon. There are statutes of limitations that, if you miss them, will cut off your ability to sue.’ But definitely he should put it in writing, even to his closest friend, his sister, anyone. You cannot be too careful.”

What Kind of a Lawyer Do You Want?

This tragic situation raises important questions: Just what kind of a lawyer do you want? Someone “gutsy” who will stand up for what is right and has the courage to tell you how much trouble you will face by not following their advice? Or Casper Milquetoast, Esq., a wimp with a law degree — of which the legal profession has its share.

Some clients, or folks who might consider themselves clients — in this case, the poor woman’s adult children — are frozen in fear, taking no action when it is critical that they act now. They need a not-so-gentle kick in the behind to provoke a needed response.

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Their lawyer friend advised them about potholes in the road of which they might not be aware, and that was his duty as a lawyer, despite the potential for creating discord.

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."