In Lexis.com, select Restatement of the Law 2d, Contracts – Rule Sections. Go to misrepresentation, duress, and undue influence. Your live lecture this week will help you use this source effectively.
Consider the following scenario:
Roger has come to the lawyer who employs you about his grandmother. His grandmother has given $25,000 worth of her jewelry to Roger’s cousin. This was supposedly in exchange for various errands that Roger’s cousin did for her a year ago as a favor. The cousin is very pushy and tends to use guilt to manipulate the grandmother into giving gifts. The cousin is very loud and assertive, but claims this is only because their grandmother is hard of hearing. Their grandmother has few assets, other than the jewelry and a modest home, so those gifts are very unusual and do not reflect her usual pattern of giving. Their grandmother also has a memory problem, but otherwise seems clear in her mind. There is nothing in writing about this transfer of jewelry in exchange for past errands.
You suspect duress, undue influence, and that Roger’s grandmother lacks capacity. Roger’s initial consultation with the lawyer was to get advice about helping his grandmother’s welfare and safeguarding her rights. He brought his grandmother along to that conference. But, at the second conference, Roger came alone and talked to you. Roger told you he has offered to settle with his cousin if the cousin will sell the jewelry and split the proceeds with him. Their grandmother is not represented by an attorney.
- Define duress, undue influence, and lack of capacity and cite your sources.
- Show how each concept applies or does not apply to this case. List facts from the above case that support your conclusions. If you are unable to resolve your doubts on what applies, state where facts appear to be lacking.
If Roger and his cousin settle this case as he proposed, (splitting the value of the jewelry with his cousin), discuss the ethics your employer should use in advising Roger. Discuss whether it is ethical for the lawyer to prepare the agreement to settle. Does the lawyer need to consider the grandmother’s interests, even though she is not the client? Consider Rules 2.1, 4.1, 4.3 and 4.4 of the ABA Model Rules of Professional Conduct. Include your own ideas of what is right and wrong in your answer.