Written Remarks of A. Frank Johns, NAELA President - Center for Professional Responsibility

PLEASE RESPOND TO
MY ADDRESS AS FOLLOWS:
A. Frank Johns, Esquire
President, NAELA
Booth Harrington Johns & Toman, LLP
PO Box 3585
Greensboro, NC 27402

February 8, 2000

Written Remarks
of
A. Frank Johns, NAELA President

The National Academy of Elder Law Attorneys

Dear Commissioners:

As president of National Academy of Elder Law Attorneys, I again thank the ABA and the E2K 2000 Commission for the opportunity to give testimony at the public hearing set for February 10, 2000, following this written statement of position. This statement is an extension of the written remarks submitted July 12, 1999 in advance of the testimony given on August 5, 1999 in Atlanta, Georgia. In the written remarks of July 12 th, NAELA identified the academy and the elderly population that its members serve. It acknowledged that the organization promotes the communitarian approach to lawyering in milieu that facilitates participation and engagement in joint, multiple and family entity representation when desired by elderly parents whose support and guidance are generated from the common interests that the connected family members share. In that context, NAELA previously confirmed its support of the Commission’s recommendations for amendments relating to informed consent in Model Rule 1.6, and conflict of interest in Model Rule 1.7.

NAELA found the proposed amendments to the Model Rules laudable, but sought further clarification by the Commission in proposing a comment that embraces joint or multiple representation in positive terms and language because of the impression left in the current writing that promotes the inference that joint, multiple or family entity representation is to be avoided, erecting severe and mandatory compliance barriers if ever considered. NAELA opined that such language and the doctrine underlying it supports the conventional "morality of individualism" construction of legal ethics rules. Instead, NAELA proposed a new tone, acknowledging a shift to a "communitarian" construct. NAELA suggested that such a shift would highlight the benefit to the community in allowing lawyers to provide joint, multiple or even family entity representation while adhering to the criteria required by Model Rule 1.7 and its comments. With a positive, communitarian tone established, lawyers could be more receptive to that which is often desired by older and declining members, allowing all who support the members in need to consent to mutual representation. NAELA acknowledged that this may only be done when there are consentable conflicts requiring informed consent in writing. While executing a written waiver of consentable conflicts, and waiving any conflicts of interest which any third party might perceive, such positive joint, multiple or family entity representation could result in confident assurance that the best interests of all family participants could be arranged based on their family values.

While previously explaining that there is a great potential for multidisciplinary, holistic legal counseling of elderly clients and their families based on a communitarian approach with joint, multiple or family entity representation to spouses and intergenerational family members, NAELA offered an addition to the comments that would provide pro-active language to guide lawyers.

At the public hearing in August, one ABA E2K Commission member focused his remarks and targeted his inquiry on Medicaid planning, misunderstanding the reality that elder law, estate planning and trust lawyers provide counsel in a larger context, especially when having the initial consultation with the members of a family. Other members voiced concern that this would provide other speciality groups within the bar to take the representation of conflicted family members into judicial forums that invoved litigation and clear non-waivable conflicts between family members.

In response to concerns over conficts, I am suggesting to NAELA a position that offers a second comment (amended comment 33), with two sections, joined with the previous comment (amended comment 32), to (1) specifically declare that the communitarian approach, and any form of joint, multiple or family entity representation with one lawyer would be barred from any judicial forum in which the appearance of the parties or pleadings of of the case were adversarial; and (2) define family for the purpose of applying the rule.

The following language may be added as new comments numbered 32 and 33 (renumbering current number 32 as comment number 34) to Rule 1. 7:

[32] While there is potential for conflict in joint or multiple representation that includes different generations with respect to asset distribution and/or decisions regarding health care, lawyers should carefully assess the benefits of collectively identifying the elderly person or persons, and their family members as those to whom the lawyer's duty of loyalty should be owed. If joint or multiple representation of spouses, and intergenerational family members as the client is appropriate after reasonable assessment at the outset, then further representation should continue with execution of the necessary written engagement or agreement, disclosing relevant, adverse confidences, and potential conflicts related to the common purposes of such representation, and waiving confidences as related to the persons involved and identified as members of the entity.

[33] Notwithstanding any other comments to the Rules, no joint, multiple or family entity representation shall be allowed, and is not waivable in any way by the clients, when there must be legal action taken in any judicial forum in which the appearance of the parties or pleadings of of the case evidence the relationship between the family members as adversarial; and for the purpose of applying this rule to family entity representation, the definition of family is

"[A] fundamental [legal] relationship established by birth, adoption or choice in which persons are responsible to each other for basic intellectual, emotional, physical, social and spiritual nurture in which there is created a unique species of legal rights and obligations, framed in legal, domestic relationships generally classified as status, including Husband-wife, parent-child, and guardian-ward, and expanded for the purpose of applying these rules by lawyers and counselors to include alternative forms of family relationships, such as cohabitating heterosexual or homosexuaI couples and surrogate parenting arrangements previously given consideration in law by the jurisdiction in which the clients are resident.

At the August meeting of the Commissioin, members of NAELA appeared to offer comments on the draft of Rule 1.14. From that meeting, I am suggesting that the Commission give consideration to the following in regards to the draft of Rule 1.14:

  1. Be Positive and Explicit. NAELA members agreed with several commissioners that Rule 1.14 should provide attorneys with more direction, in other words, make "explicit" that which is "implicit." It was pointed out that the draft of Rule 1.14 is couched in the negative, and that perhaps the rule should state more of what lawyers may do, rather than just stating what lawyers may not do.

  2. Apply the Rule to Joint, Multiple and Family Entity Representation. NAELA members in attendance observed that commission members seemed to only focus on lawyers addressing the needs of one client, no where acknowledging that an additional issue is how to deal with multiple clients, i.e. such as the family entity. Members of the commission expressed a belief that there is always only one client with no possibility of being approached by a "group."when dealing in the context of Rule 1.14.

  3. Provide Consistent Language Related to Impairment or Disability. It was specifically mentioned that there needs to be consistent language when refering to the impairment or disability of the client involved drafting 1.14. He stated that the elder law bar would prefer use of the phrase "lacks sufficient capacity" and consistent use of the word "incapacity" rather than "disability." Many members expressed strong agreement.

Subsequently, the ABA Commission on Legal Problems of the Elderly submitted a written response to the draft of Rule 1.14 for the Commission’s deliberations in December at Amelia Island, Georgia. NAELA members were provided with the ABA Commission on Legal Problems of the Elderly written comments addressing Rule 1.14. The ABA Commission on Legal Problems of the Elderly agreed with the change in terminology from "disability" and "impaired" to "diminished capacity" in the title and throughout the rule and followed with five recommendations of its own, including (1) the deletion or change of the reference to "legal action"; (2) the explicit inclusion of the principle of Least Restrictive Action; (3) the dual directive that the lawyer "consult with and disclose information to other individuals or entities only to the extent reasonably necessary to protect client interests"; (4) the express provision of more guidance to lawyers in the task of determining diminished capacity; and (5) the provision of more guidance with respect to the nature and scope of permissible protective actions.

I am suggesting to NAELA’s Board that it offer its full support to the above suggestions, except for (2) the explicit inclusion of the principle of Least Restrictive Action. As to that suggestion, I suggest that NAELA agree with the commissioner who cautioned against using the term "least restrictive alternative" in the rule itself, so as not to second-guess the lawyer.

NAELA should also agree with the comment made by a reporter that the three paragraphs of 1.14 must be read together, and with the consensus of the Commission that paragraph (c) is not an exception to Rule 1.6. It should also support the motion made to approve the black letter as drafted, and that it would be preferable to have a link between Rules 1.6 and 1.14 in the text, like the reporter’s suggestion to add "information otherwise protected by Rule 1.6" to paragraph (c).

As NAELA president, I appreciate the opportunity to again be heard at the E2K Commission public hearing, sharing my concerns, comments and support for the work that has been accomplished by the Commission regarding the proposed amendments to 1.6, 1.7 and 1.14.

Respectfully submitted,

 

National Academy of Elder Law Attorneys
A. Frank Johns, President
AFJ/bbr

c: Rebecca C. Morgan, NAELA Immediate Past President
Clifton B. Kruse, Jr., NAELA Past President
Judy Stein, NAELA President-Elect
Laury Adsit, NAELA Executive Director
Members – Professionalism and Ethics Task Force
NAELA Board of Directors

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