ANSWERSSource: ABA Journal, Vol. 73, No. 3 (MARCH 1, 1987), pp. 115-116Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759205 .

Accessed: 18/06/2014 20:08

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

This content downloaded from 62.122.79.52 on Wed, 18 Jun 2014 20:08:25 PMAll use subject to JSTOR Terms and Conditions

BY LISA L. MILORD Take this quiz and test your

knowledge of the 1983 Model Rules of Professional Conduct. Remember that the Model Rules, on which the an swers are based, are advisory only. The ethics rules, laws, court rules and opinions of individual jurisdictions are controlling.

1. You have been hired by Isa bella to represent her mother, Fran cesca, in a number of matters relating to her real and personal property. Francesca is 86 years old, of sound mind though frail, and speaks only Italian. Francesca and Silvio, her hus band, came to the United States a few years ago to live near their daughter.

Silvio, who spent a few years working in the United States during the 1950s, speaks English reasonably

well. From your discussions with Isa bella and Silvio, it becomes apparent that they honestly feel Francesca would be more comfortable in a nurs

ing home than in the house she pres1 ently shares with Silvio.

They suggest you begin negotia tions with several nursing homes in the area regarding placement of Fran cesca. Do you have an ethical obliga tion to consult with Francesca regard ing this?

_Yes_No.

_Don't know.

2. Elbert, a brilliant former law school buddy of yours, dropped out of law school in his third year to form a computer software business. You have

represented his company in a number of matters since you passed the bar a few years ago.

Sandra, another friend of yours, recently has approached you about the possibility of entering a partner ship she is forming to produce a line of computer software that is very sim ilar to Elbert's. She has told you she feels your familiarity with the com puter business would be very valuable to the new partnership.

You feel the enterprise will be profitable and are eager to accept her invitation to be a partner. If you ac cept her offer without consulting Elbert, have you violated any ethical rules?

_Yes_No.

_Don't know.

Lisa L Milord is Ethics Counsel for the ABA 's Center for Professional Responsibility in Chicago.

Ethics

THE RIGHT CHOICE

ANSWERS

1. Yes. Francesca is your client, despite the fact that your fees are

being paid by her daughter. Under Rule 1.14 (Client Under a Disability) you have an obligation to maintain as normal as possible a lawyer-client re lationship with a client whose ability to make adequately considered deci sions in connection with the repre sentation is impaired.

In this case, you would be obliged to attempt to communicate this infor

mation to your client, counsel your client and determine your client's wishes with regard to the matter, as best you can despite the language bar rier, perhaps using an interpreter such as Silvio.

You should also bear in mind that Model Rule 1.8(f) prohibits a lawyer from accepting compensation from a third party for representing a client unless the client consents after con

sultation, there is no interference with the lawyer's professional judgment or

with the lawyer-client relationship, and client confidentiality is main tained.

In addition, 5.4(c) requires a law yer never to permit a person who rec ommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer's profes sional judgment in rendering services.

Accordingly, to the extent the daughter's wishes conflicted with the mother's, your obligation would be to represent the wishes of the mother, who is your client.

ABA JOURNAL / MARCH 1, 1987 115

This content downloaded from 62.122.79.52 on Wed, 18 Jun 2014 20:08:25 PMAll use subject to JSTOR Terms and Conditions

For a free catalogue call 1-800-833-3319 ask for The Devonshire Collection. In North Carolina call 919-885-4101. ALMA DESK COMPANY, BOX 2250, HIGH POINT, NC 27261 Bl ALMA

S

I

Litigation Economics No other firm in America has the range of expert witness resources

and litigation experience concerning:

I Business sale/purchase I Property appraisals I Partnership interests I Minority equity positions I Bankruptcy liquidations I Pension fund analysis I Condemnation/eminent domain I Breach of contract

Our results are presented in clear, well-documented formats

that have persuaded courtrooms

throughout the nation. We can

strengthen a case remarkably.

FREE CONSULTATION. No obligation, of course.

800*331-6807 In California, call (818) 702-0400

Arthur D. Little Valuation, Inc. An Arthur D. Little Company

P.O. Box 4028

Woodland Hills, CA 91365-4028 Attention: Lee Roberts

Over 100 Years of Professional Excellence.

Atlanta (404) 952-3900 Chicago (312) 399-1166 Dallas (214) 373-9993 Los Angeles (818) 702-0400 New York/NJ (201) 906-9600 Washington, D.C. (202) 484-9240

And offices in principal cities worldwide.

116 ABA JOURNAL / MARCH 1, 1987

Ethics

There was no direct counterpart to Model Rule 1.14 in the predecessor Model Code of Professional Responsi bility. The Code placed no affirmative obligation upon a lawyer to attempt to maintain a reasonably normal lawyer client relationship with a client under a disability; instead, Ethical Consider ations 7-11 and 7-22 set forth various sorts of additional responsibilities that might be imposed upon the law yer in such a situation.

2. Yes, you would violate Rule 1.8, which prohibits in paragraph (a) a

lawyer from acquiring a pecuniary in terest adverse to a client unless: 1. the transaction and terms by which the lawyer acquires the interest are fair to the client and fully disclosed to him in clear written terms; 2. the client is given a reasonable opportunity to seek the advice of independent coun sel in the transaction; and 3. the client gives his written consent.

The rule is drafted stringently to prevent lawyers from using their posi tion and knowledge of the client's af fairs to take advantage of their cli ents.

While paragraph (a) is designed primarily to cover business dealings between the client and his lawyer, it also covers situations in which the lawyer would acquire an interest ad verse to the client, such as a partner

ship interest in a competing business. The latter appears to be the case here.

In addition, paragraph (b) of Rule 1.8 prohibits a lawyer from using in formation relating to representation of a client to the disadvantage of the client without informed client con sent.

Such a danger is present here where you would be tempted to use knowledge gained in your representa tion of Elbert to assist the business of Sandra's new partnership.

These specific rules regarding business dealings with clients must also be read in the broader context of the general rules on confidentiality (1.6) and conflicts of interest (1.7).

The Model Code counterparts to paragraphs (a) and (b) of Rule 1.8 were DRs 5-104(A) and 4-101(B)(3) and EC 5-3. They differed primarily from the Model Rule provisions by failing to provide for discipline if the lawyer did not provide written disclo sure and obtain written consent to the lawyer's acquisition of an interest ad verse to the client.

This content downloaded from 62.122.79.52 on Wed, 18 Jun 2014 20:08:25 PMAll use subject to JSTOR Terms and Conditions