Slides ETHICS Flashcards
(10 cards)
How a Dissatisfied Beneficiary May Proceed To Challenge Inheritance
WILL CONTEST – plaintiff trying to have all or part of will declared invalid. Usually involves issues of compliance with formalities, capacity, undue influence, fraud, duress or will interpretation. May involve attorney failure to draft consistent with testator’s intent.
ACTIONS AGAINST ATTORNEY
Malpractice action seeks damages against lawyer, either in contract (breach) or in tort (negligence or tortious interference with an expectancy)
Must overcome defense of privity
Compare misfeasance and nonfeasance
Report to State Bar Association for disciplinary action for conduct contrary to MRPC
The Model Rules of Professional Conduct and ACTEC Commentaries
Counseling (MRPC 1.2: Scope of Representation and Allocation of Authority between Client and Lawyer)
Confidentiality (MRPC 1.6: Confidentiality of Information)
Conflict of Interest (MRPC 1.7: Conflict of Interest: Current Clients/ MRPC 1.8 Conflict of Interest MRPC 1.8 Conflict of Interest: Current Clients: Specific Rules)
Common Situations Raising Ethical Issues for Estate Planners
Joint Representation
Joint representation
Both spouses
Testator and child who is client of law firm and intended
beneficiary
Client asks you to serve as P.R. or trustee in addition to
doing drafting
Issues
Conflicts of interest
Disclosure of confidential info to other client, e.g., to
gain opinions to provide effective representation, esp.
of elderly and incapacitated
Advising a client contrary to original plan to avoid
adverse legal, nonlegal or tax consequences
Joint Representation
Lawyer approached to represent married couple (or parent/child) has four options:
- a separate lawyer for each spouse,*
- the same lawyer representing each spouse individually,
- joint representation,** and
- entity representation.
- Might be best if potential for conflict exists, such as different estate plans where family is blended
- Preferred approach assuming conflict is not unwaivable and (despite ACTEC example 1.7-1) with signed waiver of conflicts and permissible disclosures. May want to address post-death disclosures also.
Some Couples Might Need Separate Lawyers
- If the clients have a blended family where the couple has children from a different marriage, then the both parents might want to obtain separate lawyers. To ensure that the children of each spouse receives the inheritance that their parent wanted them to receive, that parent might want to create an estate plan separate from the other spouse. In that case, the parent would need a separate lawyer.
- If the client is seeking a prenuptial agreement.
- There are also certain groups of people that might want to strongly consider obtaining separate lawyers because these people are not married or cannot get married. These couples need more attention because of their non-martial status.
- A person might also want to consider obtaining the services of a separate attorney if there is a dispute over the ownership of the assets of the couple.
Third Party Payment
Counseling
With third party payment, beware of potential conflicts of interest. Be particularly attuned to the possibility of undue influence.
Counseling entails both competent representation and avoidance of counseling the client to commit crime or fraud.
Avoiding Malpractice
Plaintiff sues attorney rather than, or in addition to, contesting the will.
Who is plaintiff? Consider to whom the attorney owes a duty
- Plaintiff is Executor (for harm to estate, e.g. bad tax advice)
- The requirement of privity has eroded, the standard of liability is ill-defined, and the specific duties are not well elucidated. Today only about 10 states treat privity as a bar in suit brought by P.R. - Plaintiff is disgruntled beneficiary.
- Suits can be maintained in contract (3rd party
beneficiary) or in tort (negligence).
- This area is in great flux because of bar of privity.
Defensive Lawyering
If you represented testator in drafting, by the time a will contest or malpractice action is filed, there is no testator around to testify.
Try to get client to draft in such a way that there will not be disgruntled heirs, incl. making sure all beneficiaries who expect something are provided for sufficiently and including language in documents that explain the reasons behind the decisions
Keep good documentation of client’s wishes/intent, including letters to file from client
Keep good documentation of actions reflecting professional care
Remember that clients are often elderly and may die if you procrastinate
WILL CONTESTf
plaintiff trying to have all or part of will declared invalid. Usually involves issues of compliance with formalities, capacity, undue influence, fraud, duress or will interpretation. May involve attorney failure to draft consistent with testator’s intent.
ACTIONS AGAINST ATTORNEY
Malpractice action seeks damages against lawyer, either in contract (breach) or in tort (negligence or tortious interference with an expectancy)
Must overcome defense of privity
Compare misfeasance and nonfeasance
Report to State Bar Association for disciplinary action for conduct contrary to MRPC
