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Ethics in Elder Law

Level: Advanced
Runtime: 90 minutes
Recorded Date: July 11, 2017
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1:00 pm - 2:30 pm
  • Uniquely difficult challenges to decision-making when representing cognitively impaired, older adults
  • Client-directed representation when client has diminished capacity
  • Permissible disclosures of confidential client information to 3rd parties
  • Who decides objectives and from whom may the attorney take direction?
  • Other confidentiality obligations and conflicts of interest
  • Protocols for representation
  • Staying out of trouble
  • The court’s views
Note: In this presentation we will use guardian for the person and conservator for the property.

Runtime: 1 hour and 30 minutes
Recorded: July 11, 2017


This program will cover the uniquely difficult challenges to the decision-making paradigm when representing cognitively impaired, older adults; should the representation of a client with diminished capacity always be client-directed-even if the lawyer knows that the client's objectives will harm the client; when, if ever, may a lawyer substitute the lawyer's judgment for that of the client to do what the lawyer believes is in the client's best interests; may the lawyer disclose confidential client information to third parties to obtain decision-making assistance for an impaired client; who decides objectives [MRPC 1.2(a)]; from whom the lawyer accepts direction [MRPC 5.4(c)], other confidentiality obligations [MRPC 1.6], conflicts of interest [MRPC 1.7-1.9] and other issues related to MRPC 1.14.

When representing cognitively impaired older adults, lawyers regularly encounter ethical minefields, especially because of the complex interplay of family involvement, diminished capacity and fiduciary arrangements. This program will assist lawyers in identifying the issues that may call into question their ethical duties and how to best protect their client’s legal interests.

This program was recorded on July 11th, 2017.

Provided By

American Bar Association
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Hon. Patricia Banks

Cook County 5th Subcircuit in Illinois

A 1972 graduate of the University of Wisconsin Law School, Judge Banks engaged in the private practice of law for over 20 years, before her 1994 election to a judgeship for the Circuit Court of Cook County. She served as a trial judge in the Domestic Relations and Law Divisions prior to her appointment as Presiding Judge of the Elder Law and Miscellaneous Remedies (ELMR) Division in 2010. The ELMR Division is the only division of its kind in the United States, and was established to improve access to justice for the elderly. Judge Banks structured the ELMR Division after identifying and selecting an ELMR Division Workgroup and Task Force. The ELMR Division is comprised of: The Elder Protection Courts, Education/Community Outreach Initiative and Cook County Elder Justice Center (CCEJC). The CCEJC assists Cook County residents, age 60 and over, with legal and social service needs. Since opening in September 2013, the CCEJC has provided services to over 9,000 Cook County seniors.

During the course of her legal career she served as a member of the Chicago Bar Association Board of Managers and Vice-President of the Cook County Bar Association, chairing its Judicial Evaluation Committee. Judge Banks chaired the Illinois Supreme Court Alternative Dispute Resolution Coordinating Committee and The Judicial Council Division of the National Bar Association (NBA). She is a former board member for the Center for Conflict Resolution and is a certified mediator with advanced certification in Eldercare Mediation.

Additionally, she has served as a consultant on elder abuse for the National Center for State Courts. Judge Banks is a former faculty member of the Illinois Supreme Court Judicial Conference, where she lectured on elder abuse and aging. She has given testimony before the Elder Justice Coordinating Council, and most recently participated in a panel discussion at a congressional briefing on the intergenerational, interdisciplinary issue of advance care planning. Currently, Judge Banks Chairs the 15-member American Bar Association (ABA) Commission on Law & Aging, the Elder Law Committee of the National Association of Women Judges (NAWJ) and the Elder Abuse Committee of the American Judges Association (AJA). Judge Banks also serves on the Advisory Board of Concordia University-Chicago Center for Gerontology.

Her advocacy to insure that older adults have access to justice has earned her the Governor’s Award for Unique Achievement, and the Center for Disability & Elder Law Impact Award- bestowed for profoundly impacting the lives of senior citizens.

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Kimberly O'Leary

Western Michigan University Cooley Law School

Professor O'Leary practiced law in Indiana before becoming a law professor in 1988. Her legal practice included working as an associate in a small law firm in rural southern Indiana, where she litigated constitutional and employment discrimination cases and served a general practice clientele. She also worked as a legal services attorney with the Legal Services Organization of Indiana. Professor O'Leary joined the faculty of Indiana University at Indianapolis in 1988, supervising students in the Civil Practice Clinic.

In 1993, she became the Clinic Director at the University of Dayton School of Law, a position she held until 2000. At Western Michigan University Cooley Law School, Professor O'Leary directs the Sixty Plus, Inc., Elderlaw Clinic.

Professor O'Leary has served as the chair of the Association of American Law Schools Section on Clinical Legal Education (1999), on the executive committees of that section and the Poverty Law Section of the AALS, as the newsletter editor of the AALS Section on Clinical Education, on the Board of Editors of the Clinical Law Review and has served as Vice President of the Legal Aid Society of Dayton Board of Directors.

Professor O'Leary's recent scholarship has focused on elder law. She has created ethics protocols for elder law attorneys, written about the importance of purpose in the lives of older adults, and has presented numerous workshops on elder law and ethics. She has also written about learning outcomes, attorney-client counseling, housing law, diversity training, the relationship between social justice goals and clinical law offices and clinical teaching.

She received her J.D. at Northeastern University School of Law in 1982.

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Christine P. Anderson

Director of Probation & Lawyer Deferral Services
Illinois Attorney Registration & Disciplinary Commissions

Ms. Anderson is the Director of Probation & Lawyer Deferral Services at the Illinois Attorney Registration & Disciplinary Commission. She has served as senior counsel responsible for the investigation, prosecution, and appeals of matters involving the professional misconduct of attorneys since 1988. Prior to that time, Ms. Anderson served as a Public Defender in the Winnebago County Public Defenders’ Office.

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Stuart D. Zimring

Principal Attorney
Law Offices of Stuart D. Zimring Attorneys & Counselors at Law

Stuart D. Zimring was admitted to the Bar in 1972, and is admitted to practice in California and U.S. District Court, Central and Northern Districts of California and the U.S. Supreme Court.

He received his B.A. degree in 1968 from UCLA and his J.D. degree in 1971 from the UCLA School of Law and is “AV” rated in Martindale-Hubbell.

He is a member of the Los Angeles Superior Court Probate Volunteer Panel. Mr. Zimring is a Fellow of and Past President of the National Academy of Elder Law Attorneys (NAELA), and a Charter Member of NAELA’s Council of Advanced Practitioners (CAP). He is a Fellow of the American College of Trusts and Estate Counsel (ACTEC), is certified as a Specialist in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California and is one of the 7 California members of the Special Needs Alliance.

Mr. Zimring serves on the Boards of Directors of a number of non-profit organizations, including Justice In Aging (formerly the the National Senior Citizens Law Center and is past-president of ONEgeneration in the San Fernando Valley, on whose Board he continues to serve. He is also a member of the Estate Counselors Forum, San Fernando Valley Estate Counselors Forum, San Fernando Valley and Los Angeles County Bar Associations (of which he is a past Chair of its Trust & Estates Executive Committee), State Bar of California and Southern California Council of Elder Law Attorneys.

He is an Adjunct Professor at Stetson University College of Law and California State University Northridge on issues in Elder Law and Special Needs Trusts. He is a frequent speaker and writer on Elder Law, Special Needs Trusts and related issues throughout the country. He is co-author of “Tax, Estate and Financial Planning for the Elderly – California Guide” and “Fundamentals of Special Needs Trusts,” both published by Matthew Bender/Lexis-Nexis, as well as a member of Matthew Bender’s Elder Law Editorial Committee

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