Footwear Ferguson boasts on its sign that it is the largest shoe store in the world. Although traditionally a family-owned business, when Mr. Ferguson passed away he left the majority ownership to Mark Miller, a non-relative who has worked at the store for decades.
Mark retains Garry Spence, a local attorney, having decided it was time to draft a will. Before Spence is finished with the will, he thinks of a great way to help Footwear Ferguson make even more money. Spence decides he’d like to present Mark with his idea and do the deal together. He’s willing to put up $50,000 (he’s going to take out a third mortgage on his house to do so) and wants some say in the decision-making process. The deal has nothing to do with the representation. After all, Spence has simply been retained to draft Mark’s will, so he figures Rule 1.8 probably doesn’t apply.
The work for Mark also reminds Spence that he needs a new pair of loafers, so he plans on visiting Footwear Ferguson tomorrow to buy some.
Spence practices in a state which has adopted the Model Rules in full as found at the ABA website http://www.abanet.org/cpr/mrpc/mrpc_toc.html, including Rule 1.8 Conflict of Interest: Current Clients: Specific Rules.
How does Rule 1.8 apply to the two business transactions which Spence wants to enter into with his client (the big business deal and the shoe purchase)?
What should Garry Spence do or say when presenting Mark Miller with his idea for Footwear Ferguson? What should he do or say when trying on loafers in the store?
Sample Solution
