“ELDER LAW” AND CONFLICTS OF INTEREST IN THE UNITED STATES AND CANADA
James H. Pietsch & Margaret Hall
This article considers the problem of conflicts of interest in elder law in the context of a larger discussion about elder law as a bounded legal subject. The problem of conflicts of interest is not particular to elder law. Conflicts, intentional and unintentional, have a special salience in this context, however. That salience is intensified by the expanded scope of “elder law” to include other classes of vulnerable clients, such as persons with disabilities. Despite the significance of conflicts as a real, perceived, or potential issue in this context, the issue has received relatively scant attention and discussion. This inattention to conflicts has distorted perceptions of elder law within the wider legal community, with unfortunate consequences for the development of elder law as a discrete field of practice and research. This article considers the issue of conflicts in the elder law discourse from both an American and Canadian perspective. Core practice areas for American elder law (areas not readily transportable to non-American jurisdictions) are areas in which the conflicts issue is especially prominent. From an international perspective, a perception may be created of elder law as a peculiarly American practice area, and one which is rife with real and potential conflicts that elder law practitioners—and those who would export the model—may prefer to ignore. This dynamic has frustrated the development of elder law as an international, multi-faceted, and interdisciplinary area of law. Confronting the issue of conflicts in elder law is an important first step in continuing the coherent development of elder law (perhaps within a rubric of law, policy and aging) as a bounded legal subject.
preferred citation: James H. Pietsch & Margaret Hall, “Elder Law” and Conflicts of Interest in the United States and Canada, 117 Penn St. L. Rev. 1191 (2013).