Written Remarks of A. Frank Johns - 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

Dear Commissioners:

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:

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:

1. 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.
2. 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."
3. 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";
4. 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.

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.

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.

Respectfully submitted,

National Academy of Elder Law Attorneys

A. Frank Johns, President
AFJ/mac

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

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