-Malcolm Meyer by fsb96139

VIEWS: 19 PAGES: 19

									ETHICAL CONSIDERATIONS IN HANDLING TRANSACTIONS

     INVOLVING DISABLED OR IMPAIRED PARTIES

           AMERICAN BAR ASSOCIATION

                     NEW YORK

                    APRIL 3, 2003

          ********************************

                MALCOLM A. MEYER

             BALDWIN & HASPEL, L.L.C.
               1100 POYDRAS STREET
                     SUITE 2200
            NEW ORLEANS, LA 70163-2200
                Telephone (504) 585-7711
                   Telefax (504) 585-7751
            E-mail mmeyer@baldwinhaspel.com
            ETHICAL CONSIDERATIONS IN HANDLING TRANSACTIONS

                    INVOLVING DISABLED OR IMPAIRED PARTIES

                               AMERICAN BAR ASSOCIATION



                                        I. INTRODUCTION

       What is Competency? And I use the capital AC@ purposely. Perhaps, as Professor Hoge

proposes, it is A[t]he capacity to: understand information relevant to the issue at hand; think

rationally about alternative courses of action; appreciate one=s situation as a person confronted with

a specific decision; and express a choice among alternatives.@i

       Let us break that down: UNDERSTAND (1) OBJECTIVE                       INFORMATION, (2)

ALTERNATIVES, and (3) SUBJECTIVE SITUATION, and then MAKE A DECISION. The

purpose of this presentation is to expolore the gray world of Competency, not the black and white

world. What are the lawyer=s duties and obligations to clients, and to others involved in a complex

transaction, when Competency is partially impaired?

                        II. THE ETHICAL PERSPECTIVE - THE RULES

       Real estate attorneys have long felt the conflicting tug of the obligation to facilitate a land

transaction, i.e., to get the job done, with the obligation to make sure that the person to whom the

lawyer owes a duty is making decisions competently. The lawyer=s job is certainly a Atug of

war@ at times, as the commitment to the client and the commitment to the task can easily get

confused. Obviously, the total lack of Competency is something we all recognize as a situation to

be avoided, because the transaction itself, the required consent, is lacking, and the benefits to all

parties may be lost if one party is totally not competent.



       Model Rule 1.14 seems to recognize the distinction between partial incompetence and total

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incompetence regarding the decision-making process, by the use of the word Aimpaired,@ defined by

Black=s Dictionary as Ato weaken, to make worse,@ vice Aworst.@ The distinction is important for

this discussion and for the ultimate determination of a course of action in a transaction. A DUTY

ARISES UNDER RULE 1.14 WHEN THERE IS A PARTIAL IMPAIRMENT. The cause of the

impairment is irrelevant, whether physically caused, mentally caused, legally caused or socially

caused.



                         RULE 1.14 CLIENT UNDER A DISABILITY

               (a) When a client's ability to make adequately considered decisions in
               connection with the representation is impaired, whether because of
               minority, mental disability or for some other reason, the lawyer shall,
               as far as reasonably possible, maintain a normal client-lawyer
               relationship with the client. [Emphasis Added]

               (b) A lawyer may seek the appointment of a guardian or take other
               protective action with respect to a client only when the lawyer
               reasonably believes that the client cannot adequately act in the
               client's own interest. [Emphasis Added]
                                           ******

               COMMENT 3- If a legal representative has already been appointed
               for the client, the lawyer should ordinarily look to the representative
               for decisions on behalf of the client. If a legal representative has not
               been appointed, the lawyer should see to such appointment where it
               would serve the client=s best interests. Thus, if a disabled client has
               substantial property that should be sold for the client=s benefit,
               effective completion of the transaction ordinarily requires
               appointment of a legal representative. In many circumstances,
               however, appointment of a legal representative may be expensive or
               traumatic for the client. Evaluation of these considerations is a matter
               of professional judgment on the lawyer=s part. [Emphasis Added]


What does this Rule say the lawyer is supposed to do? First, maintain the attorney-client

relationship as best as possible. Withdrawal is not the solution in this situation. Second, evaluate

the situation using professional judgement. Third, resort to legal commitment only if it Aserves the


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best interests of the client.@ Clearly the traumatic emotional cost must be weighed with the actual

dollar cost, according to the comments. However, the use of the phrases Atake other protective

action@ and Aadequately act@ in connection with the use of Aprofessional judgement@ clearly

imposes a tough subjective evaluation on the attorney. What to do?

          A most complex analysis is suggested by Model Rule 1.8. Where a client=s consent must be

clear and unequivocal, as in this area of conflict waiver, slight impairment may be disastrous for the

lawyer.

             RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS

                 (a) A lawyer shall not enter into a business transaction with a client
                 or knowingly acquire an ownership, possessory, security or other
                 pecuniary interest adverse to a client unless:

                 (1) the transaction and terms on which the lawyer acquires the
                 interest are fair and reasonable to the client and are fully disclosed
                 and transmitted in writing to the client in a manner which can be
                 reasonably understood by the client;

                 (2) the client is given a reasonable opportunity to seek the advice of
                 independent counsel in the transaction; and

                 (3) the client consents in writing thereto.

                 (b) A lawyer shall not use information relating to representation of a
                 client to the disadvantage of the client unless the client consents after
                 consultation, except as permitted or required by Rule 1.6 or Rule 3.3.

                 (c) A lawyer shall not prepare an instrument giving the lawyer or a
                 person related to the lawyer as parent, child, sibling, or spouse any
                 substantial gift from a client, including a testamentary gift, except
                 where the client is related to the donee.

                 (d) Prior to the conclusion of representation of a client, a lawyer shall
                 not make or negotiate an agreement giving the lawyer literary or
                 media rights to a portrayal or account based in substantial part on
                 information relating to the representation.

                 (e) A lawyer shall not provide financial assistance to a client in
                 connection with pending or contemplated litigation, except that:


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       (1) a lawyer may advance court costs and expenses of litigation, the
       repayment of which may be contingent on the outcome of the matter;
       and

       (2) a lawyer representing an indigent client may pay court costs and
       expenses of litigation on behalf of the client.

       (f) A lawyer shall not accept compensation for representing a client
       from one other than the client unless:

               (1) the client consents after consultation;
               (2) there is no interference with the lawyer's independence of
               professional judgment or with the client-lawyer relationship; and
               (3) information relating to representation of a client is protected as required
               by Rule 1.6.

       (g) A lawyer who represents two or more clients shall not participate
       in making an aggregate settlement of the claims of or against the
       clients, or in a criminal case an aggregated agreement as to guilty or
       nolo contendere pleas, unless each client consents after consultation,
       including disclosure of the existence and nature of all the claims or
       pleas involved and of the participation of each person in the
       settlement.

       (h) A lawyer shall not make an agreement prospectively limiting the
       lawyer's liability to a client for malpractice unless permitted by law
       and the client is independently represented in making the agreement,
       or settle a claim for such liability with an unrepresented client or
       former client without first advising that person in writing that
       independent representation is appropriate in connection therewith.

       (i) A lawyer related to another lawyer as parent, child, sibling or
       spouse shall not represent a client in a representation directly adverse
       to a person whom the lawyer knows is represented by the other
       lawyer except upon consent by the client after consultation regarding
       the relationship.

       (j) A lawyer shall not acquire a proprietary interest in the cause of
       action or subject matter of litigation the lawyer is conducting for a
       client, except that the lawyer may:

               (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and
               (2) contract with a client for a reasonable contingent fee in a civil case.
             III. THE ETHICAL PERSPECTIVE - THE ANALYSIS

The analysis of a client=s impairment of the ability to make decisions having complex legal


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ramifications can be divided conveniently into two main categories: impairments arising from

internal barriers; and impairments arising from exterior barriers. Each category should be addressed,

and each have their own solutions.

       A.      Impairments Arising From Lack of Mental Abilities-

               1. Mental Barriers in General

       ACapacity is the black hole of legal ethics. Many questions find their way into the capacity

category, but few answers ever emerge.@ii Certainly it is up to the lawyer to make the first measure

of mental capacity of the client.iii But what are the guidelines, if any? Real estate lawyers need a

frame of reference to choose a course of action consistent with ethics, professionalism and personal

morality. There are some objective standards. State statutes do set standards for total failure of

competence     which    may    provide   some    guidelines.      Usually    these   are   found   in

guardianship/conservatorship, execution of wills, forming contracts, marrying and divorcing laws.iv

       There are many tests for assessing mental capacity.        This writer has found at least 17

different tests used in the legal profession to determine mental capacity. However, standardized

tests have limitations because they attempt to make objective what is ultimately a subjective exercise

of professional judgment. What factors should the lawyer consider? An article in Fordham Law

Review suggests six inquiries.v

               i.      The client=s ability to articulate reasoning behind his or her decision;

               ii.     The variability of the client=s state of mind;

               iii.    The client=s ability to appreciate the consequences of his or her decision;

               iv.     The irreversibility of any decision;

               v.      The substantive fairness of any decision; and

               vi.     The consistency of any decision with lifetime commitments of the client;

       The first three of these factors center on the client. The second three factors center on the

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nature of the decision. However, I would add a third set of factors dealing with the client=s ability

to recognize external factors:

               vii.    The client=s ability to understand past, present and future;

               viii.   The client=s understanding of assets and income;

               ix.     The client=s understanding of act like sale, lease or mortgage.

               x.      The client=s understanding of self and others.

               2. The Nature of the Decision

       In real life, a particular client might be capable of making some decisions and not others. (No

one ever said that a lawyer=s job was easy.) But it is clear that a lawyer has a duty to inquire into

these matters and at some point to say, ANo, I will not continue down this path.@ I propose, as Mr.

Spar implies in the quote below, that contractual capacity is a higher level of thinking than dressing,

driving a car, watching TV, reminiscing about days at college, or talking football.

                       AContractual capacity is thought to be a higher level of capacity, as implied
                       by the fact that the appointment of a conservator for the estate may entail a
                       loss of contractual capacity but not testamentary capacity.@vi

       In some States there is a rebuttable presumption that any contract entered into while the

person was suffering from dementia or other incapacity will be considered a product of undue

influence.

               3. Personality and Emotional Barriers

       The impairment of mental competence not only varies with the nature of the decision, but

also with the personality and emotional state of the client. The interplay between the nature of the

decision, the other parties and the personality and emotional state could make a client impaired for

one contract but not for another.

       B.      Impairments arising from Physical and Social Challenges

               1.      Lack of Education

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        Lack of education, whether formal and informal, is also a factor relating to impairment.

Additionally, the ability of a client to train and prepare himself for a future of diminished capacity is

common, and is an aspect of education. The distinction between ignorance and lack of intelligence

must be understood by the lawyer. Lack of education can be cured by the lawyer=s efforts in many

cases. It is more difficult to cure lack of intelligence.

                Obviously, some physical defects can impair the ability of a client to make a

decision.vii

                2.        Deafness.

                3.        Blindness.

                4.        Foreign Language and Cultural Barriers

        Inability to understand the words of a contract or the customs of the place can impair

decision making.



IV. THE SCOPE OF DUTY OF A LAWYER INVOLVED IN A COMPLEX TRANSACTION

        The above discussion suggests that a lawyer has a scope of duty which may extend in a

complex transaction beyond his own slightly impaired client. His accountability to the ultimate

result may require that he be aware of the other parties and their capabilities and even the

competency of other attorneys, while respecting the other attorneys involved and their work.

Additionally, the scope of duty may extend to the impaired client=s family, partners, corporations

and others who are depending in some fashion on the client for their well-being.

        A.      Scope of Duty - Malpractice

        The three traditional elements of lawyer malpractice that must be shown are the existence of

an attorney/client relationship, negligent representation by the attorney and loss to the client caused

by that negligence.viii     Generally speaking, only a client has an action against an attorney for

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malpractice. ix But we all know that the citadel of privity is falling, as when the plaintiff selected an

attorney from the list provided by the lender, the plaintiff may satisfy the Aadvice or assistance@

test, and Ascope of duty@ may be a more relevant measurement. The plaintiff subjectively thinking

the lawyer is there for him may be a factor.x A party=s conduct governs the existence and scope of

attorney/client relationship and the existence of that relationship is a question of fact. In a real estate

closing, an attorney=s conduct has to be unreasonable to be considered a breach of duty.xi

        Although a lawyer, without express agreement, is not an insurer or a guarantor of the

soundness or of the outcome of a transaction, and is not answerable for every possible mistake that

may occur in the instruments that he creates, arguably he may be responsible that the basic mission

of the documents will held valid. He is, however, always responsible to use reasonable knowledge

and skill in the transaction of business which lawyers of ordinary ability and skill possess and

exercise in his field of practice.xii And a reasonable skill is to evaluate competency.

        Generally, an attorney cannot be sued for negligence or malpractice by her client=s

adversary in a lawsuit.xiii Transactional work does not really involve adversaries in the same sense

as classical litigation.

        The client=s burden of proof for negligence is a preponderance of the evidence that the

negligence is the proximate cause of the loss claimed. An attorney is negligent if he fails to timely

assert a viable claim or causes a loss of opportunity to assert a claim for recovery.xiv Once a client

establishes an attorney client relationship and negligence on the part of the attorney, the burden then

shifts to the attorney to prove that the negligence did not cause harm to the client.xv



        B.      The Scope of Duty in a Complex Transaction

        There are some instances where a third-party, not related to the original attorney-client

relationship, may also recover against an attorney regarding incorrect information flowing from that

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original attorney-client relationship. There are at least four different standards courts use in

jurisdictions that recognize a tort duty where privity is absent.xvi

        1.      AAkin to Privity@ View

        The Aakin to privity@ view is the minority view that extends liability to those persons who

are related to the attorney in a relationship Aakin to privity.@ The limit of this duty is related to the

attorney=s state of mind and the agreed upon expectations of the parties of the underlying

contract.xvii In terms of a Aclosing attorney@ in a real estate transaction, the closing attorney would

have to know that her documents and the transaction are to be used for a particular purpose, the

closing attorney would have to know that non-clients will rely on her work product to further that

particular purpose, and there must be some conduct on the part of the attorney that links her to the

non-parties and shows that she knows of the third party reliance on her work product.xviii

        2.      The Forseeability View

        At least four states use a broad approach to liability and recovery. In those jurisdictions

liability is extended to all reasonably forseeable plaintiffs who suffer monetary damage for their

actual and justifiable reliance on a negligent representation.xix In Ohio, the state supreme court

expanded the notion of privity to include the limited partners of a partnership when the attorney is

representing the partnership because the general partner owes a fiduciary duty to those limited

partners.xx In Kentucky, the state supreme court used a reasonable standard of care test to hold a real

estate attorney liable to the non-client buyers because the attorney knew his work product would

benefit the buyers and those buyers ultimately paid the lawyer=s costs in the closing.xxi

        3.      The Restatement 2d of Torts '552 View

        This view limits liability to a narrow group of non-clients that the attorney knows will be

injured because the attorney knows that the client will Achannel@ her work product to those non-

clients.xxii It is not required that the attorney know the identity of the plaintiff when the injurious

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action is performed.

        4.      The Duty/Risk View

        In Louisiana, courts require liability for negligent misrepresentation on a case by case

analysis using two articles in The Louisiana Civil Code:

        Liability for acts causing damage

        Every act whatever of man that causes damage to another obliges him by whose fault

        it happened to repair it.       La. Civ. Code Ann. Art. 2315

and

        Negligence, imprudence or want of skill

        Every person is responsible for the damage he occasions not merely by his act, but

        by his negligence, his imprudence, or by his want of skill. La. Civ. Code Ann. Art.

        2316

        The courts utilize these articles to allow recovery where there is a legal duty on the part of

the attorney to provide correct information, there is a breach of that duty and the breach caused the

plaintiff damage.xxiii In other words, if an attorney provides work product to a fiduciary or

voluntarily provides work product to a non-client, then that attorney owes a duty to make sure the

information is correct and assumes the risk that the non-clients will rely on that information.xxiv

        When it comes to probate law, a third party non-client may sue an attorney for malpractice in

the preparation of a will and when the non-client is in the scope of the attorney=s duty. A direct,

explicit legatee of a defective will has a cause of action against the attorney because damages are

certain, injured parties are expressly identified and loss is specific.xxv In some states, the same rule

will apply to all parties in a transaction.



                          V. DO YOU HAVE TO GET THE JOB DONE?

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       Often the momentum of a deal creates pressure to complete something that should not be

done. No damage means no recovery.xxvi Actual damages may be recovered in money damages and

the measure is the amount of loss actually sustained as the proximate result of the conduct of the

attorney.xxvii Usually, in this writer=s experience, the halting of a transaction creates less damage

than the completion of a transaction badly. When a lawyer has doubts about the competency of a

party, the proper course of action most likely would be to stop and resolve those doubts.



                                   VI. THE LAWYER=S ROLE

       Is the role for which a lawyer was hired essential to the question of what to do in a situation

where a client=s capacity to understand later becomes questionable. Were you hired by the client to

take control and make all the decisions? Were you hired as an instrumentality to make no decision

outside the technical ones? Or somewhere in between these extremes? Did the client have sufficient

capacity to hire you and to give you proper instructions at that time? Certainly, the same ability of a

client to execute a durable power of attorney suggests that a lawyer should try to clearly understand

the scope of his engagement at the beginning.



                                  VII. TRICKS OF THE TRADE

       Playing the role which a lawyer perceives to have been assigned to him by the client, human

nature and experience provide various time-proven methods to help the client or a party to the

transaction overcome impairments. The lawyer utilizes his professional skills to assist the client in

formulating decisions with competence.

       A.      Getting the Client to Open Up

               1.      Ice Breaking- Let the clients tell their story

               2.      Venting- Letting the client get it off his/her chest

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                      a.     Emotional transactions

                      b.     Family business/family home

                      c.     Personality dispute with partner or opponent

              3.      Using common sense and good judgement.

       Ms. Jan Ellen Rein suggests some very practical ways to enhance a client=s capacity.xxviii

                      a.     Print documents and communications in large bold face type, with

                             easy to read color backgrounds;

                      b.     Send materials for review before a meeting whenever possible;

                      c.     Keep background noise and interruptions to a minimum for clients

                             who are hearing impaired;

                      d.     Face the client directly to facilitate lipreading;

                      e.     Sit on his or her better side for hearing;

                      f.     Eliminate glaring surfaces, glaring lights and uncomfortable chairs;

                      g.     Speak in plain language and avoid legalese;

                      h.     Give the client plenty of time and follow-up communication to ensure

                             mutual understanding; and

                      i.     Make house calls.

I could suggest others from my own personal experience:

                      a.     Hug a person who is hurt;

                      b.     Hold a hand when a person is nervous;

                      c.     Speak from your heart, especially if you have been there yourself;

                      d.     Meet alone ahead of time;

                      e.     Express a firm religious or moral conviction where appropriate;

                      f.     Get the client to talk about hopes and dreams;

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                       g.      Emphasize the future, not the past;

                       h.      Pray with the client; and

                       i.      Get help.

       As I list my own suggestions, I wonder if I am suggesting a role beyond that of a lawyer - but

then, why does Rule 1.14 urge a lawyer to use Aprofessional judgment@ in these circumstances?

       B.      The Cold Bench

       Sometimes it may be best to do just the opposite. Stick to one topic and do not allow idle

chatter; stay with the facts. Act cold hearted.

       C.      Picking the Right People

       Oftentimes, a certain personality, gender, age, race, national origin, special background, or

physical type of person causes a positive reaction in a client. Choose the best match between the

client and the individual lawyer.

       D.      Making Friends With the Patriarch/Matriarch

       Sometimes when there is an emotional outburst, by directing your attention to the leader, the

rest of the clan is encouraged to stay in line.

       E.      Keeping the Parties occupied

       Always let the client do something. Every party in the room gets something to do. Each

party should participate toward the goal.

       F.      Never embarrass the other attorney or any party.

       G.      Never unnecessarily evoke an emotional response.

       It is absolutely unproductive to show a lack civility in your actions and attitudes to others. A

transactional lawyer should never be the source of conflict without good reason.



                                       IX. HYPOTHETICALS

                                                  13
A.   Client comes to the lawyer=s office to sell property. There is some question about his

     mental capacity and if he can comprehend the transaction. The attorney realizes that

     the client is extremely hard of hearing. (Suppose the problem is one of a language

     barrier)



B.   Your wealthy longtime client, Joe Bonds, is in failing health. He is a widower at age

     90, with adult children and adult grandchildren. He has more than enough money to

     meet his lifetime needs in style so you advise him to transfer his real estate to the

     children and grandchildren now to minimize estate taxes. He agrees and you prepare

     the documents. At the proposed act of transfer, and in front of his entire family, Joe

     vacilates, saying he will lose all of his patriarchal respect if he starts giving his

     properties away before he dies. (Now assume he is your father-in-law)



C.   Eighty year-old Mary Francis Smith is a longtime client whose assets have declined

     during her retirement. After fifteen years of marriage, her second husband (whose

     will was drawn by another attorney) died, leaving his entire estate to his children by

     a previous marriage. Mary only has some distant living relatives. Against your

     advice, Mary had refused to claim an elective share (widow=s portion). She now

     insists on transferring her only real property to Hank, a sixty-year-old handyman who

     has befriended her, bringing her groceries, fixing things around the house, and

     generally looking out for her. Hank and Mary have dinner together several times a

     week and are occasionally seen out walking or at the movies. She asks you to

     prepare a donation of the real estate. This will leave her impoverished (a gift

     omnium bonorum).

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     D.     A long-term client who has always been active in directing what to do with his

            assets, when speaking with you alone, says, ADo whatever they want@ referring to

            his children and the transfer of property in his estate. Does that mean that the client

            has become incapable of deciding how to manage his assets, or does it simply mean

            that he wants to keep the peace among his family?

                   Hypotheticals B-D are adapted from; Jan Ellen Rein, Symposium, Ethics and

                   the Questionably Competent Client; What the Model Rules Say and Don=t

                   Say, 9 STAN. L. & POL=Y REV. 241 (1998). This is a highly recommended

                   article which deserves further reading by those who are interested in this

                   area.



     E.     When reading a lease forwarded by a particularly loathsome personality of a lawyer

            across town, you get the feeling that the draft of the lease is geared to provoke rather

            than reach an agreement. How do you turn the situation from one of opposition to

            successful negotiation? Assume that the object of your client is to get an even-

            handed lease signed.

                                     X. CONCLUSION

     Can we elicit some simple, common sense guidelines from the presentation?

RULE ONE:           Slight impairment of a client=s competency is not a reason to terminate the

                   attorney-client relationship. Maintain the relationship as best as possible.

RULE TWO:          A lawyer should employ professional subjective judgment in determining the

                   appropriate course of action.

RULE THREE:         The financial and emotional costs to the client should be weighed against the

                   expected benefit.

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RULE FOUR:    Consideration must be given to the nature of the decision and its impact on

              the client.

RULE FIVE:    A client=s mental competency should be measured by analyzing his internal

              awareness of self, he external awareness of the world and his awareness of

              the relationship between these two, in terms of time, rights and action.

RULE SIX:     A lawyer=s duty to a client may extend to non-clients who depend upon the

              lawyer=s evaluation of the client=s competence.

RULE SEVEN:   When your gut tells you to stop - then STOP.




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                                           END NOTES

1. S.K. Hoge, The MacArthur Adjudicative Competence Study: Development and Validation of a
Research Instrument, 21 LAW & HUM. BEHAV. 141, 179 (1997)

ii. Jan Ellen Rein, Symposium, Ethics and the Questionably Competent Client; What the Model
Rules Say and Don=t Say, 9 STAN. L. & POL=Y REV. 241 (1998), citing, Peter Margulies, Access,
Connection and Voice: A contextual Approach to Representing Senior Citizens of Questionable
Capacity, 62 FORDHAM L. REV. 1073, 1082 (1994).

iii.See Marshall B. Kapp, Measuring a Client=s Capacity: Not so Easy Not so Fast, NAELA
QUARTERLY, Summer 2000 at p. 3.

iv.See California=s Due Process in Competence Determination Act of 1995.

v. See Recommendations of the Conference on Client Capacity, 62 FORDHAM L. RE. 989, 991
(1994).

vi. See J. Edward Spar, Attorney=s Guide to Competency and Undue Influence, NAELA
QUARTERLY, Summer 2000 at p. 7

vii.John J. Wargo, Model Rule 1.8-Catch 22?, NAELA QUARTERLY, Winter 2001 at p. 32

viii. Silverstein v. Juarez, 98-1322 (La. App. 5th Cir. 6/1/99), 740 So. 2d 702, 706, See also
Dinger v. Shea, 96-448 (La App. 3rd Cir. 12/11/96), 685 So. 2d 485, 490.

ix.Desire Narcotics Rehabilitation Center v. White, 97-2758 (La. App. 4th Cir. 4/14/99), 732 So.
2d 144, 146 (citing Henning Construction v. First Eastern Bank, 92-0435 (La. App. 4th Cir.
3/15/94), 635 So. 2d 273, 277).

x. Richard v. David, 442 S.E.2d 459, 460, See also, Jack L. Sammons, Legal Ethics, 46 MERCER
L. REV. 305, 336-337 (1994).

xi. N.C.U.A. v. Gilmore, No. 92-12277-Z, 1994 U.S. Dist. LEXIS 8714, at *6-*12 (Mass. Dist.
1994).

xii. Stake v. Harlan, 529 So. 2d 1183, 1185 (Fla. Dist. Ct. App. 1988).

xiii. White, 732 So. 2d at 146, citing Penalber v. Blount, 550 So. 2d 577 (La. 1989).

xiv. Arrington v. Aucoin & Courcelle, L.L.C., 2002-642 (La. App. 5th Cir. 10/16/02), 2002 La.
App. LEXIS 3131

xv. Gilbert v. Foster, 2002-653 (La. App. 5th Cir. 11/26/02), 2002 La. App. LEXIS 3675 at
*8(citing Jenkins v. St. Paul Fire and Marine Insurance, 422 So. 2d 1109 (La. 1982)


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xvi.Barrie v. V.P. Exterminators, Inc., 625 S. 2d 1007, 1013 n.10 (La. 1993) (citing First Florida
Bank, N.A. v. Max Mitchell & Co., 558 So. 2d 9, 12 (Fla. 1990)(noting that some states recognize
a fifth test that is a basic balancing test).


xvii.Onita Pacific Corp. v. Trustees of Bronson, 843 P. 2d 890, 908 (Or. 1992).

xviii.Credit Alliance Corp. v. Arthur Anderson & Co., 483 N.E.2d 110, 118 (N.Y. 1985).

xix.Barrie, 625 So. 2d at 1013, (citing First National Bank of Commerce v. Monco Agency, 911
F.2d 1053, 1058 n. 9 (5th Cir. 1990)(listing New Jersey, California, Mississippi and Wisconsin)).

xx.Arpadi v. First MSP Corp., 628 N.E.2d 1335, 1339 (Ohio 1994).

xxi.Seigle v. Jasper, 867 S.W.2d 476, 482 (Ky. 1993).

xxii.Barrie, 625 So. 2d at 1014 (citing First National Bank of Commerce, 911 F.2d at 1061).

xxiii.Pastor v. Lafayette Building Assoc., 567 So. 2d 793, 796 (La. App. 3rd Cir. 1990)(citing
Dohmann v. United Gas Pipeline, 457 So. 2d 307 (La. App. 3rd Cir. 1984).

xxiv.Id.

xxv. Succession of Killingsworth, 292 So. 2d 536 (La. 1973).

xxvi. Lybrand v. Drolla, 95-9 (La. App. 5th Cir. 10/31/95), 663 So. 2d 850, 853.

xxvii. Howard v. Wicker, 94-1245 (La. App. 1st Cir. 4/7/95), 653 So. 2d 845.

xxviii. Symposium, Ethics and the Questionably Competent Client; What the Model Rules Say
and Don=t Say, 9 STAN. L. & POL=Y REV. 241 (1998).




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