ETHICAL CONSIDERATIONS IN HANDLING TRANSACTIONS
INVOLVING DISABLED OR IMPAIRED PARTIES
AMERICAN BAR ASSOCIATION
APRIL 3, 2003
MALCOLM A. MEYER
BALDWIN & HASPEL, L.L.C.
1100 POYDRAS STREET
NEW ORLEANS, LA 70163-2200
Telephone (504) 585-7711
Telefax (504) 585-7751
ETHICAL CONSIDERATIONS IN HANDLING TRANSACTIONS
INVOLVING DISABLED OR IMPAIRED PARTIES
AMERICAN BAR ASSOCIATION
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
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
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
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
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:
(1) a lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on the outcome of the matter;
(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
(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
(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
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
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
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
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
4. Foreign Language and Cultural Barriers
Inability to understand the words of a contract or the customs of the place can impair
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
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
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
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
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.
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?
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
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;
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.
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
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
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
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.
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
RULE FOUR: Consideration must be given to the nature of the decision and its impact on
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.
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
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.
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)
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).
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).