DIFFICULT MORAL QUESTIONS
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Question 187: Should a lawyer help an unreasonable client disinherit her children?
I am a lawyer working alone; I limit my practice to estate, trust, and tax matters. One of my clients, a wealthy widow, called me to her home the other day to ask whether she could disinherit her two children by revoking the trusts she and her husband set up for them. When I said she could, she explained that she is angry with them and has told them she will disinherit them for opposing her when she told her physician in their presence to make sure she dies quickly when she no longer wishes to live. I asked her what she meant by that. She made it clear she wants the doctor to help her kill herself painlessly if and when she feels her life is not worth living. The children said this would be wrong and tried to get the doctor to say he would not help her. He did not argue, but my client is sure he is on her side and will do as she wishes.
The way the woman told me all this, as much as what she said, struck me as strange and out of character. Of course, I tried to talk her out of revoking the trusts. I said her children had a point and surely have her best interests in view. She told me to mind my own business and do the job or she would get another lawyer. I stopped arguing and agreed to prepare the necessary papers.
Now I am having second thoughts. If the children are disinherited, they will not be impoverished, since both make good livings and each received a small but substantial portion of their father’s estate. The effect of revoking the trusts will be a far larger residue, to be divided among my client’s nieces and nephews, whose financial condition is unknown to me. Consequently, I do not see anything inherently unjust in what she wishes to do, and if she seemed entirely rational and wanted to do it for other reasons—say, because her children were neglecting her—I would not hesitate. As it is, I wonder whether I should refuse. Of course, I can delay a few more days and try again to get her to change her mind, but I doubt that she will.
Analysis:
This question concerns cooperation in an unreasonable act. The questioner should try to resolve his or her doubt about the client’s legal competence. Unless she is not competent, the questioner, having agreed to do what she requested, should either do it or withdraw without delay. Materially cooperating with the client might be justifiable. But unless some responsibility requires the questioner to continue serving her, I believe he or she should refuse to cooperate, state the reasons for refusing, and try again to persuade the client to change her mind.
The reply could be along the following lines:
What you have agreed to do does not appear to be wrong in itself. Drawing up papers of the sort your client desires certainly is morally permissible. Moreover, disinheriting one’s children is not necessarily unjust, and this client’s children, having already been adequately provided for, apparently have no right to what they stand to lose. Still, if you proceeded, you would help to carry out an act that is objectively wrong inasmuch as it is unreasonable. Your client’s children not only have a point. Their position is morally sound, while hers is objectively gravely wrong. Your statement of the problem does not mention other possible factors—such as the intentions of the children’s father or a possible understanding between the parents—that could ground a claim by the children on at least part of what they stand to lose.
Several things might lead you to ask whether your client is legally competent. You say that what she did struck you as out of character and that she does not seem entirely rational. Those observations seem borne out by her unreasonable request for help in committing suicide, the fact that the request was made in her children’s presence, her disproportionate anger over their opposition, and her shortness with you. If you judge that these things, or anything else you know about her, suggest she no longer is legally competent, I think you should try to resolve that question before proceeding. If you conclude she is not of sound mind, you should not cooperate with her in attempting to do something whose legal validity will be questionable. Rather, you should do what you can (“can” referring to moral acceptability as well as to other limits) to ensure that her existing disposition of her wealth will remain unchanged.
However, if you are not convinced that this client is legally incompetent, it seems to me that no moral consideration clearly precludes your cooperating with her. But should you?
Someone might say that, having agreed to do as your client wishes, you must prepare the papers rather than break your word. Plainly, however, you assume, and rightly, that neither your agreement to do as she asked nor your existing professional relationship with her binds you if there is a good reason for not carrying out her instructions. Nevertheless, since you agreed to prepare the papers and delay in deciding whether to do so is unnecessary, you should not delay in the hope of getting her to reconsider. Rather, you should decide what to do and do it promptly. Moreover, you are only likely to irritate this client unless you very soon either do as you agreed or tell her you have changed your mind.
If you needed the income from this client to meet your responsibility to support yourself and your family, that need might ground a moral obligation for you to carry out her wishes. But you do not mention such a need, and I assume you can afford to lose her business.
On reflection, you might become convinced of two things: (1) refusing to cooperate with her would only lead her to carry out her threat to get another lawyer; and (2) continuing your relationship with her would be in her true interests and in the best interests of others likely to be affected by the way her legal affairs will be handled. In that case, you might conclude that your commitment as a lawyer to serve clients to the best of your ability requires you to do as she wishes in this matter so as to preserve your relationship with her. However, if you consider these things carefully, you very likely will remain doubtful about them.
If neither your responsibility to support yourself and your family nor your responsibility toward your client requires that you maintain your relationship with her, I see no other moral consideration requiring you to cooperate with her. If there is none, I believe you should not prepare the papers as you agreed, but instead should do your best to persuade and encourage her to change her mind. Even if the children are not entitled to what they stand to lose, they will be wronged if they are disinherited for opposing their mother’s suicidal desire. You should resist this wrong, not help bring it about. Besides, you should bear witness to the sacredness of human life and the truth about suicide, and refusing to cooperate with this client will do that, while cooperating with her, without a cogent reason for doing so, would suggest, at least to the children and perhaps to others, that you consider her plan morally acceptable. Last, not least, though you doubt that this client will change her mind, you should try for her sake to get her to do so, and you are more likely to succeed if, by refusing to cooperate, you show her how seriously you take the matter.
Your client’s plan to end her life and/or her decision to disinherit her children might have consequences she has not considered—for example, her estate might be eaten up in costly litigation, in which you might be compelled to testify about how and why she revoked the trusts. Sketching out such possibilities to her might soften her resolution about one or both things. Then too, in directing her physician to end her life if and when she feels it no longer worth living, she may have incited him to commit a crime and may herself have violated the law. Explaining the legal significance of what she has done might put the matter in a different perspective for her. Finally, though, you should tell her that her desire to end her life when she chooses is suicidal, and that suicide is wrong, even if a person does not violate the law, or involve or injure other people. Even if your client is not a believer, in making this point you should explain that she can have no reasonable grounds for assuming that death will be an ultimate escape from suffering. Point out, too, the legal and moral right to refuse overly burdensome treatment and to request palliative care, including the drugs required to control pain even if they incidentally shorten life.415
If your best efforts at persuasion are fruitless and you judge that you should not carry out this client’s instructions, you should not only say so but put your refusal and the reasons for it in writing. In that way, you not only will make your position clear to her but will have evidence that you have done so.
In billing, you should not, in my judgment, charge this woman for the time devoted to giving specifically psychological and/or moral counsel. Though providing such advice often is appropriate and sometimes morally obligatory, lawyers are neither especially able to give it nor retained for this purpose. They should recognize that such advice goes beyond the strictly professional service that calls for payment.
Finally, even if your attempt to get your client to change her mind fails and she gets another lawyer, you will have fulfilled your responsibilities to her and the others involved, and your witness to the truth about suicide may bear fruit you cannot now foresee and may never know.
415. See John Paul II, Evangelium vitae, 65, AAS 87 (1995) 476, OR, 5 Apr. 1995, xiii; LCL, 530.