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Written Remarks of A. Frank Johns, Rebecca C. Morgan and Clifton B. Kruse, Jr. - Center for Professional Responsibility

July 12, 1999

Written Remarks

A. Frank Johns
Rebecca C. Morgan
and Clifton B. Kruse, Jr.

On Behalf of
The National Academy of Elder Law Attorneys

Dear Commissioners:

The National Academy of Elder Law Attorneys thanks the ABA and the Commission for the opportunity to appear at this public hearing and to follow the appearance with this written statement of position. NAELA recognizes the considerable time that the Commission has given to our profession so that we can better serve and protect the interests of our clients.

Elder law attorneys, trust and estate lawyers, family law and matrimonial attorneys, small general practice law firms and solo

practitioners all consistently work in the context of serving the legal needs of individuals, including many who are elderly. As the aging demographics make the significant impact on society that has been forecast in recent years, the needs of the patriarchs and matriarchs of American families will require counseling and other services that positively embrace the family unit as the client.

The National Academy of Elder Law Attorneys ("NAELA") is a 3500 member professional association of lawyers who concentrate on a broad array of legal and non-legal issues affecting their elderly clients. This organization promotes the communitarian approach to lawyering. In context, NAELA and the elder law bar work with elderly clients and their families, appreciating the reality that in the large majority of engagements our clients and their families share common goals and values. It is in this milieu that the necessity of participation by family members in joint or multiple representation is desired by elderly parents whose support and guidance are generated from the common interests that the connected family members share.

NAELA supports the Commission’s recommendations for amendments relating to informed consent in Model Rule 1.6, and conflict of interest in Model Rule 1.7. The clarity of the new definition of informed consent in Model Rule 1.6 will assist elder law attorneys to conclude whether or not elderly clients of diminished capacity still have sufficient informed consent sufficient to engage the attorney for representation and the delivery of legal services.

The clarity of the amended definition of conflict of interest in Model Rule 1.7, removing the confusion between direct adversity conflicts and material limitation, will assist elder law attorneys in determining which situations pose "a significant risk" such that the representation will be limited by the lawyer's interests and duty to others.

While NAELA finds the proposed amendments to the Model Rules laudable, it submits to the Commission the need for a comment that embraces joint or multiple representation in positive terms and language. Currently, the comments addressing these rules are negative and prohibitory. They leave the impression, and promote the inference that joint or multiple representation is to be avoided, erecting severe and mandatory compliance barriers if ever considered. This language and the doctrine underlying it supports the conventional "morality of individualism" construction of legal ethics rules. Instead, a new tone should be voiced in the Rules that acknowledges a shift to a "communitarian" construct. Such a shift would highlight the benefit to the community in allowing lawyers to provide joint or multiple representation to family members 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, when there are consentable conflicts requiring informed consent in writing. While expressly waiving consentable conflicts, and waiving any conflicts of interest which any third party might perceive, such positive joint or multiple representation could result in confident assurance that the best interest of all family participants can be arranged based on their family values.

Recommendation for Model Rule Comment.

There is a great potential for multidisciplinary, holistic legal counseling of elderly clients based on a communitarian approach with joint or multiple representation to spouses and intergenerational family members. A lawyer who is approached by a family for advice or representation, therefore, needs to take particular care to assess the viability of joint or multiple representation of the family as the client, and the value that may result by this innovation.

The following language should be added as a new comment number 32 (renumbering current number 32 as comment number 33) 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,

NAELA is aware that the E2K Commission has identified as part of its work plan other rules identified as most in need of fixing. Included in the plan priorities was Model Rule 1.14. NAELA agrees with the Commission that Model Rule 1.14 gives insufficient guidance to lawyers representing clients suffering under a disability. NAELA will offer the Commission its suggestions for proposed amendments to Model Rule 1.14 in the next several months.

NAELA appreciates this opportunity to be heard at the E2K Commission public hearing, sharing its primary concern regarding the proposed amendments to the Model Rules. It is hoped that the the Commission finds the information and comments productive and beneficial.

Respectfully submitted,

National Academy of Elder Law Attorneys


A. Frank Johns, NAELA President

Rebecca C. Morgan, NAELA Immediate Past President

Clifton B. Kruse, Jr., NAELA Past President

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