PLEASE RESPOND TO
MY ADDRESS AS FOLLOWS:
A. Frank Johns, Esquire
Booth Harrington Johns & Toman, LLP
PO Box 3585
Greensboro, NC 27402
May 19, 2000
A. Frank Johns, President
The National Academy of Elder Law Attorneys
As president of the National Academy of Elder Law Attorneys, I again thank the ABA and the ABA Ethics 2000 Commission for the opportunity to give testimony at the public hearing set for June 2, 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, and the written remarks submitted February 8, 2000 in advance of testimony given on February 10, 2000.
At its meeting on May 5, 2000, the NAELA Board unanimously voted to support in concept the joint, multiple family member representation that I agreed with professor Hazard would be acceptable as a modification to previously submitted proposals addressing the need for guidance through an additional comment to Rule 1.7. The NAELA Board also approved a proposed revision of Rule 1.14, Client with Diminished Capacity, and additions to the proposed new rule 1.18 – the Prospective Client.
PROPOSED ADDITIONAL COMMENT TO RULE 1.7
CONFLICT OF INTEREST.
While previously explaining that there is great potential for multidisciplinary, holistic legal counseling of elderly clients and their families based on joint, multiple family member representation that includes spouses and intergenerational family members, NAELA offered an addition to the comments that would provide pro-active language to guide lawyers.
Based on previous submissions to and testimony before the ABA E2K Commission, and the subsequent revision of that comment, and the position of several commission members, the revision of a proposed comment to Rule 1.7 would read as follows:
 While there is a potential for conflict in joint or multiple representation that is intergenerational and involves asset distribution or health care, lawyers may carefully assess the benefits of identifying elderly persons, their spouses and family members as those to whom the duty of loyalty should be owed. If joint or multiple representation of spouses, and intergenerational family members is appropriate after reasonable assessment at the outset, then further representation may continue with the execution of a written engagement, disclosing any relevant, nonmaterial conflicts and adverse confidences related to the common purposes of such representation.
PROPOSED REVISIONS TO RULE 1.14
CLIENT UNDER A DISABILITY.
Additionally, I offered specific suggestions for the rewrite of Rule 1.14, most of which were an embrace of what Charlie Sabatino presented to the Commission on behalf of the ABA Commission on Legal Problems of the Elderly. NAELA now supports consideration of the following revisions to the draft of Rule 1.14:
- Be Positive and Explicit. NAELA agrees 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.
- Provide Consistent Language Related to Impairment or Disability. NAELA supports revisions that provide consistent language when referring to the impairment or disability of the client involved in Rule 1.14. NAELA prefers the use of the phrase "lacks sufficient capacity" and consistent use of the word "incapacity" rather than "disability."
- Dual Directive. NAELA supports 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";
- More Guidance. NAELA supports the express provision of more guidance to lawyers in the task of determining diminished capacity; and with respect to the nature and scope of permissible protective actions.
NAELA’s support for the revision of Rule 1.14 as enumerated above is an adoption of the ABA Commission on Legal Problems of the Elderly written response to the draft of Rule 1.14 for the Commission’s deliberations in December, 1999 at Amelia Island, Georgia. There is one exception. NAELA does not support at this time the explicit inclusion of the principle of Least Restrictive Action. As to that suggestion, NAELA agrees 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 also agrees 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. NAELA also supports 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).
PROPOSED ADDITIONS TO PROPOSED RULE 1.18 PROSPECTIVE CLIENT.
One last item. Currently there is no connection between the newly proposed Rule 1.18 – Prospective Client, defining the prospective client, and current Model Rule 1.14 – Client with Disability. Rule 1.14 is framed in language that addresses the on-going client-lawyer relationship. There should be a connection between the two rules, providing guidance to lawyers dealing with prospective clients and their capacity to exercise informed consent by engaging in the client-lawyer representation.
Formation of Client-Lawyer Relationship. The legal profession first views the relationship of the client and lawyer based on the manifestation of the person’s intent. The relationship arises when a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person. While intent is founded on capacity, general legal texts address the client-lawyer relationship based on the client having fully informed consent, and based on what the lawyer discloses to the client about the benefits and advantages of the proposed representation and conflicts of interest. There is also general legal comment about legally incompetent clients who require representation for which they are personally incapable of giving consent. However, the writings identify only those who are already incompetent and are either represented by a guardian, or if minors, represented by their parents.
Current and Future Consideration of the Prospective Client.. Currently, few general writings of the legal profession mention the attorney’s need to assess the prospective client’s competence to hire counsel, or to assess capacity to function with informed consent. In fact, the legal profession initially looks at competence only in terms of the lawyer’s ability to deliver legal services. Consider Model Rules 1.2 and 1.16, bracketing the beginning and the ending of the client-lawyer relationship. These rules are more concerned with the lawyer’s role, and whether what the lawyer is being asked to do that which is moral or ethical, rather than whether the prospective client has capacity to consummate the engagement.
The Lawyer’s Duties to Prospective Clients. Even if not engaged, the proposed new rule highlights the commission’s concern that the lawyer may have duties to prospective clients that include protecting confidential information, property and providing reasonable care. This is where emphasis on the prospective client’s capacity commands attention. However, attention to client capacity is not currently examined generally in the legal profession until the client-attorney relationship has been established and is ongoing. Neither is it currently addressed in the proposed new rule 1.18. The proposed new rule relating to the prospective client begins with a concise definition, addresses confidentiality and examines material adverse interests between the prospective client.
PROPOSED NEW RULE 1.18 - DUTIES TO A PROSPECTIVE CLIENT (with edits)
- A person who consults with a lawyer concerning the creation of a client-lawyer relationship with respect to a matter is a prospective client.
- Even when no client-lawyer relationship
ensuesis established, a lawyer who has consulted with a prospective client shall not use or reveal information learned in the consultation, except as Rules 1.6 and 1.9 would permit or require with respect to information of a client or former client.
- Neither a lawyer subject to paragraph (b) nor a lawyer to whom disqualification is imputed under Rule 1.10 shall represent a client
withwhose interests are interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
- Representation is permissible if either:
- both the affected client and the prospective client have given informed consent in writing to the representation, or
- the lawyer who received the confidential information took reasonable steps to avoid exposure to more information than was necessary to determine whether to represent the prospective client and that lawyer is screened as provided in Rule 1.11.
While the proposed new rule is currently limited to concern for conflicts, NAELA’s position is that the proposed rule should be expanded to address capacity and informed consent of the prospective client as well. NAELA respectfully suggests to the ABA E2K Commission that it address the prospective client’s capacity and ability to exercise informed consent in proposed Rule 1.18 by merging language from Rule 1.14, Client with Diminished Capacity and the proposed revision to Rule 1.4, addressing informed consent.
PROPOSED ADDITION TO PROPOSED NEW RULE 1.18 – PROSPECTIVE CLIENT.
(b) When the lawyer has reason to believe that the prospective client may have diminished competence or capacity, then
- the lawyer shall, as far as reasonably possible, ascertain whether the prospective client is capable of adequately engaging in and maintaining a normal client-lawyer relationship and making adequately considered decisions in connection with the proposed engagement for legal representation.
- The level of the prospective client’s competence or capacity should be considered adequate [ALTERNATE LANGUAGE – EITHER "at that lowest threshold of cognitive function that still allows for the exercise" OR "when the prospective client can give"] informed consent to a proposed course of conduct after the lawyer has communicated reasonably adequate information and explanation regarding the representation as found in Rule 1.4 (b) and (c).
- When a prospective client’s competence or capacity is determined to be below the threshold to retain the lawyer and make adequately considered decisions in connection with the representation, then the lawyer may be retained by attorney-in-fact or legally appointed guardian for the prospective client, except when the prospective client’s interests are materially adverse to those of the attorney-in-fact or guardian.
- When the lawyer has determined that the prospective client’s capacity is below the threshold described in subsection (b)(2) above, and that the prospective client is at risk of substantial physical, financial or other harm unless action is taken, and the prospective client is unable to adequately act in his or her own interest, the lawyer may take reasonably necessary protective action. Protective action may include consulting individuals or entities that have the ability to take action to protect the prospective client, and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or a guardian.
As NAELA president, I appreciate the opportunity to again be heard at the ABA E2K Commission public hearing, sharing NAELA’s concerns, comments and support for the work that has been accomplished by the Commission regarding the proposed revisions to rules 1.6, 1.7 and 1.14, and the proposed rule 1.18.
National Academy of Elder Law Attorneys
A. Frank Johns, President
c: Rebecca C. Morgan, NAELA Immediate Past President
Clifton B. Kruse, Jr., NAELA Past President
Judy Stein, NAELA President-elect
Charlie Sabatino, ABA Commission on Legal Problems of the Elderly
Laury Gelardi, NAELA Executive Director
Members – Professionalism and Ethics Task Force
NAELA Board of Directors