Category: NEWS

The Lawyer ‘s Duty of Loyalty: To the Client or to the Institution?

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THE LAWYER’S DUTY OF LOYALTY by Ramsey Clark I. My subject has within its range a major ethical problem of our society and of our profession. Law can be very important to life. It is essential, finally, to survival. I would like to think of it, for purposes of this conversation, as Hegel did in his work on the philosophy of right where he saw in the development of civilization an expansion of the consciousness of freedom, with the securing of rights under law as the actualization of freedom. Lawyers are involved in that process. All too often we think that law and legal justice can be something apart from life and social justice, that we can have one set of values and aspirations and attainments in one and something different in the other. But so profound an analyst and philosopher of our law and times as David Bazelon has wondered whether legal justice is possible without social justice. II. It is almost absurd to believe that humanity has a capacity to set aside its prejudices and other predilections in a courtroom. Culture is lord of everything, of mortals and immortals king, Pindar said. Law is caught up within the confines of that culture. It’s a slower part, but it is a part. Felix Cohen has said that most judges and lawyers, indeed most people, are as unaware of their culture patterns as they are of the* The talks collected here are adapted from the Baker and McKenzie Foundation Inaugural Lecture Series: Inquiry into Contemporary Problems of Legal Ethics, at Loyola University of Chicago School of Law, Spring 1984. ** Mr. Clark’s talk, which is presented here in a version edited with his permission by the Editors, was given March… Read More

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When the Guardian is An Abuser

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CHAPTER SUMMARY • June 2019 Dari Pogach and Erica Wood, American Bar Association Commission on Law and Aging Introduction Courts name guardians to protect adults from abuse, neglect, or exploitation; however, in some circumstances, guardians are the perpetrators of such actions. Guardians wield immense power over adults in their care. More information is needed on the extent and consequences of abuse by professional and family/ non-professional guardians. Recent government and media reports have highlighted egregious cases in which guardians have taken advantage of their positions. What can an advocate do when a guardian is a perpetrator of abuse? In this issue brief, the generic terms “guardian” or “guardianship” refer to guardians of the person as well as guardians of the property, frequently called “conservators,” unless otherwise indicated. The term “abuse” refers to abuse, neglect, or exploitation, unless otherwise indicated. Case Examples1 EXAMPLE 1 Mr. G, injured at birth, receives monthly settlement and periodic lump sum payments, and has had a guardian his entire adult life. The court ordered that all Mr. G’s money be placed into a trust and a professional fiduciary appointed to handle the finances. During the 12 years of the trust, the professional fiduciary made numerous interest-free “loans” to himself, to his friends, and to his speculative business ventures. The fiduciary paid himself trustee and accounting fees, without accounting to the court. An attorney appointed to represent Mr. G subpoenaed and combed through years of bank records to uncover the fiduciary’s actions; appointed a special master to perform a forensic accounting; and brought a recovery action against the fiduciary, obtaining a judgment of over $300,000. The fiduciary has since been charged criminally. EXAMPLE 2 Mr. S became comatose after a serious fall. His adopted daughter, appointed as… Read More

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