Cooler Heads Prevail

By Mitch Smithpeter, Elder Law Clinic Student, Fall 2015

“I’ve been thinking about what you told me to do, and I have a problem.” Though our client was trying to remain calm, I could sense the frustration and distress in her voice. Our client, a woman in her seventies, had come to the Clinic to find out if her Power of Attorney, which had been set up for her by her son while she was temporarily incapacitated, was still in her best interest. After some consideration, we at the Clinic agreed that it was not and subsequently set our minds to creating a new Power of Attorney for her. Now, a new problem had arisen: she could not find anyone willing to serve as the agent for the new Power of Attorney. Her relationships with both of her children were sour, and she had no other living relatives that she could assign. She had a few friends, but they were her age and were not willing to assume the added responsibility to act as the agent. She indeed had a problem.

While listening to her, admittedly, I was not as immediately concerned as I probably should have been, mostly owing to my lack of experience. I figured that there had to be some organization out there that would act as agent. After all, several organizations act as guardians for people who have no one else, so why not as an agent? I was brought back down to earth soon after; there really was not an organization that would act as agent. I was surprised, and frustrated. I felt righteously indignant that this woman needed help and there was no one willing or able to offer that help.

In a team meeting a few days later, I explained the situation to our supervising attorney. As clients sometimes do, I came to the meeting secretly harboring a hope that our supervising attorney could point out an obvious option we had missed, pull a rabbit out of her hat, or work a small miracle. I have been told that I have a terrible poker face, and as we discussed the situation I am certain our supervising attorney could detect my frustration with the suboptimal choices. As we talked, she offered our group counsel. “You have to remember that this is the client’s problem.” Upon hearing this I thought, “Well, yeah, but she came to us, and so now it’s our problem.” The full force of what she meant did not hit me just then. It finally did when we met with the client to explain what options she had. In that meeting, I realized that my job as a student attorney was to objectively find and present the available options to the client. My job was to represent the client zealously, but “zealously” did not mean that I needed to pull a rabbit out of a hat or part the Red Sea. While I could empathize, I did not need to feel frustrated; I had done my job.

While it may sound callous at first, this realization brought me immediate relief. Not because I was glad the problem was hers and not mine. Rather, I realized that an attorney must be careful not to let the client’s problem become his or her own so the attorney can do the best job possible. If we let the problem become our own, we may be more apt to start giving subjective advice, not objective counsel. Just because the available options are not what we want does not mean there is no hope, or that we are not doing our job. I realized that to maintain a clear, objective view of the situation I had to refrain from becoming engrossed in the situation. Empathy, to an extent, was acceptable, even advisable, but not to the point where it clouded my judgment. By allowing the problem to remain the client’s problem, I could remain clearheaded. True, we must look at the evidence in the light most favorable to the client, but we can still do that from an objective standpoint. As is the case with many problems, cooler heads will prevail. While empathy helped me be human, objectivity helped me be an attorney.