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Ethics in Estate Planning

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Ethics in Estate Planning

In this program, attorney Sara Bragdon will discuss various ethical obstacles that can affect estate planning attorneys in their day to day practice and review strategies on how to traverse them. This course will cover conflicts of interest in representation, client capacity considerations, client communication best practices, and handling attorney fees.

Transcript

Hello, everybody. My name is Sara Bragdon. I'm an attorney in Auburn, Alabama. I am a shareholder and attorney with Akridge and Balch PC, and I am most familiar with the Alabama Rules of Ethics. However, we have adopted the model rules and so this should apply to everyone unless your jurisdiction has not adopted the model rules. So I want to get started because we've got a lot to cover. So legal ethics in estate planning, it can get a little hairy because a lot of times there may be a chance that your client is has diminished capacity. There may be a time where not necessarily the client, but the family can look to the attorney that prepared the estate documents for further assistance and that can always create some precarious situations. And so I want to start with the big issue of who is your client? When we look at determining who our client is in estate planning, we have to remember that our client is the person for whom we are preparing the estate documents. It is not necessarily the person who contacted you because that could be somebody different. Our duty is owed to the testatrix or the testator. And so a lot of times I know our office, we get calls all the time about. Children or from not about from children who just want their parents to get their affairs in order. And so they're going to call and make the appointment for their parents, and they're going to make their parents show up. And so. If kind of where we run into some issues is if the child, the adult child brings the parents, they think they're going to get to sit in there and hear everything. And if that is the case, you know, a lot of times the client does want, you know, they want somebody in there with them because they're not sure, you know, that they're covering everything or the the child may have a better understanding. And so prior to allowing anyone, any third party who brought the client to the appointment. Initially when they come in, I do ask the third party to sit out in the waiting room. And then I will meet with the client. And the first thing I ask them is, are you comfortable doing this by yourself, or would you like to have somebody in here with you? A lot of times they'll say, well, they know this better than I do. So, you know, there will be that, I guess, that invitation then, for the third party. Now, if that if that does happen, I always at least make a note in my client notes for the appointment, because when they do that, there are there's kind of things that that kind of fall by the wayside at that point. You know, attorney client privilege is is enjoyed by the attorney and the client, not necessarily the attorney, the client and the third party. So when you do authorize somebody else to be in that meeting, you want to make sure that they understand that in having a third party in their meeting, they are waiving that attorney client privilege. And so in the best case scenario, you would have a written consent from the client. I know that's not always feasible. That's why I do always make a note in my file that the client requested that a third party be in their meeting. Even I mean, I don't know that legal, legal, or written consent is required, but it definitely is the best way to make sure that that this was at the client's request and it was not. At. You know, it's nothing that you encouraged. They weren't persuaded by the third party. You just want to make it clear that it was the client's request. In that same vein, there may be a third party that's paying you to do this. And so that is okay. That's acceptable under the model rule 1.8 F and then under comment 13 of 1.7. And so. That doesn't mean that if you have a third party paying for the client's services, that doesn't mean that they're your client too. And you can just discuss everything with them. So the client needs to give informed consent to authorize a third party to pay for their legal fees. Um, the the the payment arrangement cannot interfere with the attorney's independent professional judgment on the client's behalf or with the attorney client relationship, unless they have already waived that. You know, previously, as we just discussed. And then the client's information has to remain protected. So you are still bound by your duty under the attorney client privilege to keep their file confidential, to not discuss anything with. The third party who is paying? And so. I mean, I think, you know, as we go through our practice and as we're doing this, it it obviously is more fluid than, you know, steps one, two and three. Make sure you do one, two and three. But you do want to make sure that you are doing all of those things. And so that is very, very important. That can get you into an ethical conundrum that you certainly do not want to be in. So the next things we want that come into play, we can go ahead and flip the slide. Our conflicts of interest. So Model rule 1.7 provides the general rule for conflicts of interest. And. It. You know, if there is a if there is a, a concurrent conflict of interest, then you can't represent the client. So a concurrent conflict of interest is if the representation of one client would be directly adverse to another client. Or that there is a significant risk that the representation of one or more clients would be materially limited by the lawyer's responsibility to another client, whether they be a former client or a third person, or by the personal interest of the lawyer. So. So those are the concurrent conflicts where you you shall not represent the client. There's no there's no waiving that. There's no nothing. So however, under 1.7 B, you may represent a client if you reasonably believe that you will be able to provide competent and diligent representation to each client that is affected. The representation is not prohibited by law. The representation does not involve the assertion of a claim by one client against another client, represented by the lawyer in the same action, so you can't represent both parties. And that each affected client gives informed consent in writing. So. You. This is something you don't want to try to hide this from anyone. You know, if if there is a conflict, a waivable conflict, you have to notify each affected client and you have to get their written consent. And so kind of how this comes up a lot in estate planning. Is when you draft the initial documents as we discussed your client. Is the testator or the testatrix. It is not the proposed executor. It's not the propose. It's not the agent under the power of attorney. Um. It's not, you know, the proxy under the advanced directive for health care. It is the testator or testatrix under the will and the principal under a power of attorney. I kind of found this out the hard way. This is a real life example where I represented a gentleman in preparing a new power of attorney, because he felt like his previous agent was abusing their authority. And so he came in and we we prepared a different one. And then the agent under that pa came to me later and said, hey, we need a guardianship and a conservatorship for dad because he's he's just not in his right mind. And we're afraid that somebody's going to take advantage of him. And so we need to we need to get a guardianship in a conservatorship. And so I filed. I filed the petition thinking that I was doing the right thing. This was several years ago, thinking I was doing the right thing. And the other sibling. Retained an attorney. And that attorney said, well, how are you going to get around this conflict that, you know, you did a power of attorney for him, and how are you going to get around that? Well, in my mind, the reason I like estate planning is because I don't feel like there's a whole lot of adversarial issues surrounding estate planning. So I thought I was doing the right thing in that I was taking care of my client because he was at risk of being taken advantage of. And so I called the bar association because I just wasn't sure. And they kind of said to me, this is something that you don't you don't want to get involved in that. You just want to just just don't don't mess with it. Because as, as the attorney who prepared the power of attorney, now that principal is a former client. The way the law views a guardianship and a conservatorship is that is an adverse action against the potential ward in that you are attempting to have them to be legally determined to be incompetent. And so that was a wonderful lesson for me and one that I will never forget. And and I try to tell, tell everyone that you know about that experience because I think as a state planning attorneys, we always think we're doing good for our clients. And so, you know, if the client was at risk of being taken advantage of, or so the agent said. You know, of course we want to protect our client, but it can be a bit of a sticky wicket. And so you want to look out for that. Now, when I did call the bar, they said that I could potentially represent the petitioner, um, under Model rule 1.14. And that is the rule that that kind of talks about when you have a client with diminished capacity. And so at the end of the day, you know, the bar, the bar association said, you know, it's very limited circumstances and there is a chance that you could end up being a witness against your own client. So I was advised to just stay. Stay out of it. Don't bother, you know. So that's what I did. I had to withdrawal. And my client or the the agent under the PR was not happy about it. Um. But. You know, I didn't know at that time, and now I do. So now I can avoid that situation. Another very common potential conflict that that as estate planning attorneys, we probably see it almost every day. Is the joint representation of spouses. Um. So as we discussed, you know, you can't represent clients whose interests are adverse. So again, when we think about estate planning, we don't necessarily think about adversarial issues. However this comes in. Most of the time when we're talking about blended families or. Um. Maybe there's, you know, one of the spouses had a child outside of wedlock and brought the child into the marriage, and perhaps they had not, you know, the step, the step parent hadn't adopted the child. So a lot of times it can get very uncomfortable at the table, at the consultation table. Um, and so. When you look at representing. Both spouses. The best case scenario is that they want mirror image sweetheart wills. Where everything is left to the surviving spouse, and then it's left all to the children. Now, those, you know, they're very simple and they don't necessarily provide a whole lot of clarity for the beneficiaries at the death of the second spouse. But that is a perfect world. You know, everybody's copacetic, everybody's happy, and they just want wills to protect their assets or to, you know, name a guardian for their minor children in the event that something were to happen to both of them. So where it really comes up is when you've got a blended family with grown children, adult children and. And maybe one spouse has more of a retirement, or maybe they inherited something from their families or, um, and maybe once the spouse that doesn't have all that thinks that they should get everything, you know, when they're when that when the first spouse passes, well, then you've got the spouse with all the money saying, no, no, no, no, that's for my kids. You're not you're not going to get some of that. No, that's not right. And I have literally sat at the conference room table while my clients argued, and it was so incredibly uncomfortable. And it's happened more than once. And and finally they just looked at each other or they looked at me and they said, we're going to figure this out. We'll call you back later. And they did. They worked it out and it was fine. Um, but, you know, if they can't resolve that issue, then you can't represent either one of them, because now you have consulted with them. And so you've got to bow out completely. And so it is. Obviously it is. Advantageous to help them work it out, but at the same time. You don't want to get in the middle of a fight between spouses when they have financial issues. Financial issues in a marriage are horrible when you're the one having the issue. As soon as a third party is thrust into their it, it's not good. So, you know, you kind of have to tread very, very lightly. And so, um, so like I said, if they can't resolve their issue, then you got to go on. Um, you know, I've had clients come in and, you know, they'll tell me if they'll come in together and then let's say one of them gets up to go to the bathroom. Well, then the one that's left in there will say, oh, well, he doesn't know about this, but I have X and I'm going to do X with it. Um. And that, you know, that in and of itself can create a little bit of an issue. Um, because, you know, theoretically at the meeting, you know, the estate planning meeting, you have a discussion about all of the assets, and you know what the plan is to disperse them at your death. And so if they're hiding assets from each other that has that has the recipe for disaster, because that can obviously create major issues. And so. You know, it's not like I can say, oh, I didn't hear that. You know, once I heard it, I heard it. So in that situation. I kind of had to tell the person that was talking to me that we can't keep secrets here. Like, if I'm going to represent both of you, we've got to we've got to do it. You know, the way it needs to be done. And so because if that if that ends up being something that is adverse to that other spouse, then you've got clients that are adverse to each other and that just is never you can never do that. So just keep that in mind. So now unless you if you truly believe that you can still represent both parties, you know and not. You know not have your your I guess your. Your thoughts or whatever to affect your representation. If you can still competently and diligently represent them, then that's fine. However you do, if there is an issue you do need to get. You need to get some consent in writing. From everyone. So model rule 1.0. That's kind of where where the rules provide all the definitions for things. And so we hear informed consent a lot when we're talking about medical, when we're talking about, you know, being part of a research project or whatever, you know, you got to have they have to get informed consent. And so the model rules provide a definition as it pertains to the legal field. So informed consent is an agreement by a person to a proposed course of conduct. After the attorney communicates adequate information and explanation about the risks and reasonably available alternatives to the proposed course of conduct. And so I mean, it is very similar to, you know, a medical. Informed consent. But as lawyers. We have to think about. Like when we do this, we also have to think about what what could what could the client do rather than having us represent them in a potentially conflicting situation. You know, you can suggest that they go hire another attorney, which I have done, and I have had clients say, no, I don't want to do that. And which is a compliment, but it also I also then know that I'm going to have I'm going to have to tread very lightly. And so you can suggest alternatives to even taking legal action. Um, and so, you know, if they want to try those other alternatives, that's great. But you just have to make sure that they understand what are the alternate courses of action that they can take, and then what could result in them taking those actions. Now I say what could result? You know, obviously we as attorneys cannot guarantee anything as far as an outcome. So you want to make sure that you don't say, this is what will happen if you do X or I know this is how X would turn out. You don't want to say that because clients listen and they hold you to things. Um, like I know I've had. Several issues with potential forged signatures that we sent off. And I think the client heard one of my co-counsel say, well, even a kindergartener could recognize that that was that that was forged. And then the handwriting expert comes back and says, nope, that's that's a true signature. And so she's really having a hard time with accepting what the expert said. Um, so you never want to guarantee any outcome of any alternative course of action. And what you may want to do, too, is include a conflict waiver provision in your engagement agreement or a separate consent document for each client to sign. And that is under ABA model rule 1.7 and the comments consent to future conflict. So as far as you know, any waiver of conflict or anything like that, you always want to get stuff in writing. You want people to sign stuff, so that way they understand and you have proof that they said they understood. Um, you know, a lot of times. Clients. They recall what they want to recall. And you can say, well, I never said I would do that. And and so that way if they go and file a bar complaint against you for, you know, representing conflicting clients, you have the receipts and you can tell the bar, no, no, no, no, no, no, I told them about this. They knew about it and they said it was okay. And that should take care of that. I do always love when I can provide the receipts to the bar association. And they, you know, then I get that nice letter that says, we're closing this file. This is done. Um. So the next big issue when it comes to estate planning and clients is client capacity. And that is mental capacity. So to represent a client in their estate planning, they are they must have the capacity to participate in the process and to execute the required legal documents. Now capacity varies by jurisdiction, of course, and it also varies as it pertains to which document they're signing. So a last will and testament. That is very that is known as testamentary capacity and is a very, very, very low standard. I mean, even somebody that is the subject to of a guardianship and conservatorship can sign a will, at least in our jurisdiction. So, um, because the only thing that they have to know to be of sound mind. They have to understand the nature and extent of the property to be disposed of. They have to understand the objects of their bounty, which are their beneficiaries. And they need to have a general understanding that by signing that will, they are authorizing the disbursement of that of their property in the manner that the will provides. So they I mean, that sounds a lot more complicated than it is. They really just need to know that their will is how their property is going to be handled after they die. And so if you now if you if you have any reservations about their capacity or if you question it at all, know I always make a note in the file. And then I will. I make a note saying that capacity is questionable. And then? Then I asked them more questions. So or I'll go back and try to rehash conversations that we had earlier in the meeting to see kind of what their response is. If it's the same as what they told me before, or I asked them the name of names of their children, how many children do they have? And just kind of go through what, what what the sound mind prongs are. Now, a lot of times when you say when you ask a client what's in your estate. They don't particularly know what that means. So if they say, well, I don't know, that's not necessarily. You know, that's not necessarily evidence of them not knowing the nature and extent of their property to be disposed of. Because when I ask even young people, I'll say, what's in your estate? They start rattling off, you know, everything that you know. Has the beneficiary named everything that is owned jointly with right of survivorship. And so sometimes you have to explain, you know, we as lawyers, I always joke with my clients that, you know, I get paid by the word and I get I get paid by the length of every word that I use. And so you you have to explain to them what, what their estate actually is. You know, it is what is going to be solely in their name at their death that will need to be dispersed out of their estate. Sometimes they don't have anything that is going to need to be dispersed. And so you just do a will just to to cover your butt. Uh, just to make sure that everything gets dispersed. You know, let's say they forgot something, or they obtain a new a new asset. Now the telling one is whether they know the objects of their bounty. Um, because usually when we're questioning capacity, that's when we start thinking about elderly folks whose beneficiaries are going to be their children. And they have adult children. And, you know, it's nothing new to them. So I have had a client that did not remember the names of his children, and I had done a will previously for him where he did. And so I knew that he was declining. And so, you know, you can. I mean, you can try to refresh their memory a little bit, but that, you know, as far as that goes, you want to be careful because when you have clients with diminished capacity, they'll tell you whatever you tell them, they'll say, yeah, that's right. Okay. Yeah. And so you just got to be really careful about kind of refreshing their memory or giving them, for lack of a better word, hints of what they have or who their children are. And the third one is pretty easy. Um, you know, they just have to know that when they sign, that will. You know, and unless they sign a subsequent will, that's how their stuff is going to be. Dispersed when they pass. And so. If you do have reservations about their capacity, you know, and it's not it goes beyond even just just making a note in the file and then asking them, you know, certain questions and, you know, kind of making yourself feel better about it. There may even be a circumstance where you might need to consult or get a letter or something from a medical professional. Um, kind of the downside to that is that you have to have the client's authorization to do that. They would have to sign like a HIPAA release or something like that. And so now if they are under a guardianship, you know, you can work with their legal guardian for that. You don't have to work with them directly. You can work with their legal guardian to get that. Um. That, I guess information from their doctor. Now, that doesn't mean that their legal guardian is your client. That kind of goes back to what we started with. So that does not mean that their legal guardian is your client. They are just assisting you because they have the authority to obtain that information that you need. And so I mean, obviously if they are under a guardianship, their capacity is a question. So. Um, and they can't, you know, and if they are under guardianship, they can't sign anything anyway. So you have to have that guardian to be there to help you get that information, to make a final determination. But like I said, testamentary capacity is so incredibly low. But that is also solely to sign a last will and testament that does not pertain to a power of attorney or an advanced directive. So. So if you know, if your capacity if their capacity is in question. I almost say it's better to just not even if you don't feel good about it. You know, it's just I wouldn't even try to get them to sign a PR or a health care proxy because that requires more of a contractual capacity, and they have to really know what they're signing. They have to understand what they're signing. And those also those documents also have a lot more. You know, they allow someone else to handle. To handle everything for the principal. And so if they don't really understand what they're signing, you know, God knows what that principal could do using that power of attorney and health care proxy. So you got to be really careful. You know, I generally tell folks like, look, we can do a will, but we, you know, we can't do a power of attorney. We can't do an advanced directive. And so that's just to kind of. Cover my own rear end. Another thing that I, that I dislike doing is notarizing the documents myself. Because if any of those documents ever came into question, then you would have to be a witness and you could not represent your client. And so you always, of course, want to avoid scenarios where you might become a witness in a in a case against your client. So. So that is something to think about. And that's something that I recently started, you know, being very mindful of because everyone in our office are notaries and it doesn't take an attorney to be in an estate signing meeting and a document signing meeting. So. And I tell my clients that up front, you know, there may be a chance that I won't be there. And so any questions that you have, we got to get them out now. And so I will set up I set up a separate estate document review meeting for the client to come in and ask any questions to make any revisions, get clarification on things. Because on the off chance that I can't be there, you know, there may not be an attorney in that meeting. And so there would be nobody that could answer those questions. Um, and then that kind of keeps me at a little bit of an arm's distance. I mean, of course I have prepared the will. Um, and even that is a question as to whether you can serve as counsel. For an executor when somebody is challenging the will. My my general rule is if it looks like a conflict, it smells like a conflict. It's probably a conflict. And so just stay away, because I don't like to put myself in precarious situations where I might either have to withdraw in the middle of something, leaving my client kind of high and dry. Um. And I also don't want to appear, you know, to be acting in any, in any way that is less than above board. And so, you know, I think we as attorneys, we, you know, are. Our integrity and our ability to follow rules and all that. I mean, that's that's all we have. And so I think if if you put that into question, then. You know, you run the risk of of harming your, your reputation. And I never want to be in that. In that. I guess in that role where I have to defend myself against why I did something. So. The other thing, and this is what I hear the most when people file bar complaints, um, it is because. Um, the one thing I hear most about why bar complaints are filed is because attorneys do not communicate with their clients. Um. And that is just not okay. So you know. A model. Rule 1.4 requires a lawyer to keep a client reasonably informed about the status of a matter. And promptly comply with reasonable requests for information. So. You know, if you, if you, you know, took in a new client and. You know, maybe you were you had some questions about their estate plan that you needed to research. You have a duty to kind of keep them informed about the progress of that, and kind of where you are in the research, not only the research, but in the drafting part, because that's what they hired you for, is to prepare their estate plan. Um, and I can't tell you how many times. Have seen attorneys who just sit on an estate plan. They don't draft it, they don't do anything, and they don't communicate with the client. And then, worst case scenario, the client dies. And so you're sitting there with everything that they wanted. But it's not in a will. It's not signed. It's not anywhere. And so then whatever they had, if they had one, you know, prior to them requesting a new one, that's what's going to control. And so because I know I'll have clients, a lot of times they'll ask me. I had a client send me an email of everything that he wanted, and he said in the email, you know, these are my last wishes. And I, you know, anything filed or drafted before this is null and void and yada, yada, yada. Well, I had to tell the client that that was not effective. And so, you know, so it was on me to, to get to get everything done. I mean, this client for some reason has a very unreasonable, um, concern that he's just going to die. And I don't know why, but he's always every time he comes in, he says, well, how long is this going to take? You know, can we get this done soon? Because, you know, we're we're going here, we're going there. And um, and so, you know, a lot of clients are very concerned with getting this done in a. In a quick and efficient manner. And so. Uh, you know, you always want to, you know, because we don't know. We don't know when our last day on earth is. So, you know, if people are coming to you for their will, nine times out of ten, it took them forever to finally come to the realization that they needed one. And so you need to you need to do it. I did have I represented some beneficiaries on an estate where the there was no will when the estate was filed, because the decedent had paid for an attorney to prepare a will for him, paid in full, and the attorney did nothing. And so I do not represent the executor. But, you know, I do know that there was no will, and they paid for a will. So again, we just never know when our last day is on this earth. And so it is on us, you know, as estate planning attorneys to help our clients get their estate together. Because obviously, if you know, if they don't have a will, then you're looking at an administration with lots of extra costs, lots of extra oversight, and it can be a nightmare. So, you know, if you are falling behind a little bit, you know, in your work, just communicate that to the client. I have always found that my clients are much more appreciative when I tell them, hey, you know, I apologize that I'm a little running a little behind. I just want to let you know that I haven't forgotten about you. And we're know this is on my list. We're getting to it. And rather than just avoiding them or not taking their phone calls or not responding to emails or anything like that, because then it just looks like you're avoiding them. And they don't like that because odds are they probably paid you something and they have a right to know what's going on. And so. As far as communication. You know, there's communication from the lawyer to the client. But then there's also an aspect of communication from the client to the lawyer. You know, we don't know about everybody's assets and everything that they have unless they tell us. And so what I generally do or what I have started doing is when a client books an appointment for estate planning, I have set it up to where they automatically receive an email with our estate planning questionnaire and the email request that they fill it out before our meeting. Um, not only so we have something to discuss, but also because these are all things that we as the attorneys, need to know about. And so it gets it gets the client kind of thinking about what all they have. And then it allows us, as the attorney to say, okay, I see you have these retirement accounts if you want to leave them as beneficiary designees. Let's go check on that. Now, if the client doesn't tell you something and so you don't plan for it, then that's not on you. Um, I mean, I have a scenario that doesn't necessarily pertain to estate planning, but to a state administration. And we closed an estate almost ten years ago. And just a couple of weeks ago, we get a phone call from somebody who has been making payments to an account on a loan that was in the decedent's name. And so now he wants to pay it off and have the property transferred. Well, we closed the estate and my executor had no idea that that account existed. And so, you know, that's not on us, that we closed the estate with assets still in it because nobody knew. And so another thing I like about having a really good, thorough estate planning questionnaire is that not only does it help us, but it also I always tell the clients to keep a copy of it with their estate documents so that when they pass, their executor knows everything that there is, so they know where to start because most people don't know where to start. And so, you know, and I always like to have the client bring in any deeds to property. Because, you know, we want to check to see if it's joint with our survivorship. And so we'll add a lot of times the client will say well I know it's in both of our names. Okay. That's great. I'm glad. Um, but, you know, there's more to it than it's in both of our names. It's, you know, is it tenants in common? Is it joint survivorship? Is it we in Alabama, we do not have tenants by the entirety, but I know some states do. Is it tenants by the entirety. Is it a life estate. You know, you just never know. And so I always do request that the client bring that in so that I can adequately provide them with advice on all of their, all of their things, because that's what that's our job is to advise the client on how we operate and what we need to do, and the best way to dispose of their assets. We. Um. And so, you know, I'm not saying that you have to have it set up, that they automatically get a copy of the estate planning questionnaire. Um, but, you know, before I had that set up where it automatically went, as soon as the appointment was booked, I would have my paralegal email it to the client, you know, before their appointment and request that they bring it with them. And, you know, if they have questions about it, you know, if they don't fill it out completely and they come into the appointment. I'm not going to say, well, you need to go back and finish that and you can come back when you're done. No, I mean, because a lot of it they don't know about. You know, they don't know what certain things are. So that's what our meeting is for, is to kind of help them through that and help explain things. And so having that that form is very, very helpful, you know, because it allows them to put down their decision makers and their, you know, if they have a house, what's the, you know, is there a mortgage, what's the balance. And. You know, all of those things. And it also the form itself requests that they bring in documentation to kind of back up what they've put on the questionnaire, because I always like to check beneficiary designees, and I always like to just make sure that the client, when I ask them something, that they understand what I'm asking and what their answer means. So. So yes. So you definitely want to make sure you have a thorough questionnaire and make sure that the client brings in documents to back it up. But it also just it's a good time to have the client gather everything and keep it together. I always run into I have executors and they'll come to me and they'll say, I have no idea what what they had. I don't know where they banked. I don't know if they had any life insurance, I don't know. You know what? How their house was deeded. I just don't know. And so it's good to kind of have the forethought and the foresight to have them gather that stuff together and keep it, keep it together, because nobody likes to do that, and you only want to have to do it once. So, you know, there's that. And so I think my final topic is attorney's fees, engagement agreements and client trust accounts. The big scary trust account. I know before I took over as a shareholder of my firm, I always said I never wanted to take over a firm. I never wanted to own a firm because the term trust account just gives me the heebie jeebies. And it still does. I'll just be honest, it does. So the rules kind of give us some some guidance on our fees and kind of how we can charge them. And you know, what we need to do to kind of set the expectation for the client. So the model rule 1.5 prohibits lawyers from entering into an agreement for charge or collect a clearly excessive fee. Um, and they, they provide a list of factors to be considered. So you know how complex the issue is. Um. What the client has requested, what the time it could take to prepare or to to perform the work requested. And so the best way to communicate your fee. And I know for estate planning I generally do flat fee. Um, and so it's always best to have a written fee agreement with the client. That doesn't only protect you, or it doesn't only protect the client, it protects you too, because it allows you to say what you're doing, what you were hired for, and you can even say how payment is to be made. So I know generally when I take on a new estate planning client, I do require a 50%, I guess, down payment before I'll even open the file. And then when that when when I draft the documents, that money gets moved over to operating because I've done work. And so then when they come in to sign, they make the final payment. And. So it provides a clearer vision to my clients about what they're going to have to pay. So they're not totally shell shocked. Um, and what, what I'm doing for them. So if I'm doing an estate, I call it an estate suite, which is a will, a health care proxy and a power of attorney. You know, they know that. That's all I'm doing. I'm not. I'm not preparing deeds. I'm not recording anything for them. I'm just. I'm just preparing the documents for them to sign. And so if they want me to do something else, then we have to amend our fee agreement. And so I know that some states require that you have a fee agreement and an engagement agreement. Alabama does not. But I don't know why they don't. So it's just I have started doing fee agreements for every client. Because, you know, I've had too many instances where the client said, well, you didn't tell me that you were going to charge for this, and I didn't know that you were. You know, every time I talk to you, I was going to get billed for it. And so I make it very clear, you know, I have a flat fee agreement. And then I also have an hourly fee agreement where I bill hourly, and I make it clear any work performed on the file is going to incur a fee because that's, you know, as lawyers, that's all we have is our is our brain and our work product. And so, you know, it's only fair to do it that way. So when when a client does make a retainer payment or the down payment, as I call it, for the for the estate plans, those funds go into our trust account. And then like I said once, I once I do the work and prepare the documents, then I move that money over into operating. And then upon signing, they can either pay when they come to sign, or they can pay when they pick up. And so I have a different date for them to pick up their documents after we've made copies and everything. And so. Another thing, you know, like if I prepare a trust or if we are preparing deeds, I charge the flat fee for the preparation. But in addition to the flat fee, I also charge if we have to record anything. So we have recording costs and deed tax. And so if we're doing that, then I always say it's, you know, flat fee plus cost. And, you know, a lot of times we can't calculate that right off the bat because we, you know, we need some more information, usually from the probate office or the recording office. And so. So you know. But but again, if that's what you're doing, you want to make that very clear to the client. And so like if you're billing mileage, if you're billing recording costs, if you're billing or yeah, if you're billing out you know for. You know, paralegal time or whatever the case may be. You really want to make that clear? And so it covers your butt, it covers the client's butt, and it just sets the expectation. You know, that's what I have. That's kind of the mantle that I have taken up since taking over for the firm. I have. I have gotten sick and tired of clients thinking that we are at their beck and call, and whenever they say jump, we have to ask how high? Because that's not true. We are professionals and we are allowed to have our own time. And so when I send out an engagement agreement, I also send out our communication policy, and I send out our office closure schedule so that the client knows when we're going to be closed. So, you know, because we close anytime the courthouse closes, we close for the most part. And so I think it's important to set that expectation of, you know, if you just walk in my office, I'm not I'm not going to drop what I'm doing. You have to make an appointment. Um, the other thing I have kind of taken over or taken on is we used to as soon as the client signed their documents, we would run in the back really quick and make copies, and they can have as many copies as they wanted, and we would give them copies that day. Well. In talking with my support staff, who is so amazing, they said that's too much because a lot of times it can take, you know, an hour in the signing meeting if the client has a lot of questions. And then when they come in, that requires the paralegal and the support staff to kind of drop what they're doing. And so now I have set up a schedule of document pickup is on Friday. And if they if it's signed Monday through Wednesday of that week, then they pick up that Friday. If it's signed Thursday, they pick up the next Friday. And so and I haven't really had any pushback for that. It's just. Everybody seems to be very understanding and very appreciative for us, letting them know our expectations up front and then because then they know what to expect from us. And so I and I don't know, we don't take really take cold calls. And so we make sure that we put all of that into our engagement agreement. And we have the client sign each paragraph saying that they've read it. Um, and so again, I think just setting client expectation is good not only for the client but for your staff, because I think your staff needs to understand that they're just as important, if not more so if you have good staff, they're they know where all the bodies are buried and they know they know everything. And so you don't you don't want them to feel like they are being taken advantage of either by you or by the client. And you know, before implementing this, I've had clients say, well, I'm at your office. I need you to come up here on a day that we're on vacation. Like. So no, I'm not not doing that because generally what we any, any practice that we do in, in my firm is not an emergency. And so anything can wait until the next day. Um, and so I've kind of started to set up boundaries for between the clients and our office. And it has been great. I haven't gotten any any pushback. Um, you know, I have had people look at me and say, oh, you know, especially if they're former clients and they remember the way we used to do it. Um, but no pushback. Just. Oh, okay. All right. That's different. And and so it's been great. So I would advise kind of taking care of yourself and taking care of your staff too, in your engagement agreement and just kind of setting that expectation for the client so that they know that they're not going to just you're not going to bend over backwards for them if it's not necessary. Of course, you know, we always want to say that, you know, the client is always right or the customer is always right, but. In the legal field. That's not true. We're the experts. We know what you know. We know when things are urgent and we know when they're not. And what we need to do is just communicate that to the client. And which is sometimes harder to do than other times. So. And then if they can't understand, if they can't understand that you have boundaries and that you have a life outside of the office and they're just not willing to abide by, you know, the, I guess, the rules and regulations that you've set up, then it may be time to look at cutting that client loose, because there will be others that come along. So. So in conclusion. I know this is an ethics and ethics class, so I have I would I would be not doing my job effectively if I didn't say know the rules of professional conduct. Make sure you know them. You know you don't have to have it memorized, but make sure you have a general working knowledge and. And know when it's okay to say no to the representation of a client. If you believe that there might be a conflict either immediately or down the line. Um, you know, I've had I had a long standing client, and she wanted me to do some legal work for her. But it was against some people that we represented in the past, or it potentially could have been against them. And so rather than getting involved in it and then midway through having to say, I'm out, I can't do this. I just told her, I can't represent you in this now, she wasn't happy. But, you know, it's not our job to always make people happy when it when it could affect our ability to practice law. Because I don't know about you guys, but I like doing what I do, and I want to keep doing it for a long time. So. But when in doubt, you know, call your general counsel for your state bar association there. At least I know ours is so helpful and they're so nice and they will really walk through, you know, potential pitfalls. Um, now, I have had general counsel tell me. I don't think that's a conflict, but if you don't feel right about it, then don't do it. And so that has given me kind of that out to say, okay, I'm not going to do this. So. That is all I have. Thank you so much for listening and if you have any questions, please feel free to reach out to me. I believe my contact information is somewhere and if it's not, you know, I'm sure you can get it from Quimbee. So thank you again and I hope you have a great rest of your day.

Presenter(s)

SBJ
Sara Bragdon, JD
President and Attorney
Akridge & Balch, PC

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
  • 1.0 ethics
Unavailable
Alaska
  • 1.0 ethics
November 13, 2025 at 11:59PM HST Available
Arizona
  • 1.0 professional responsibility
November 13, 2025 at 11:59PM HST Available
Arkansas
  • 1.0 ethics
November 13, 2025 at 11:59PM HST Approved
California
  • 1.0 ethics
November 13, 2025 at 11:59PM HST Approved
Colorado
    Pending
    Connecticut
    • 1.0 ethics
    November 13, 2025 at 11:59PM HST Available
    Delaware
      Pending
      District of Columbia
        Not Offered
        Florida
          Pending
          Georgia
          • 1.0 ethics
          Pending
          Guam
          • 1.0 ethics
          November 13, 2025 at 11:59PM HST Available
          Hawaii
          • 1.0 ethics
          November 13, 2025 at 11:59PM HST Approved
          Idaho
            Pending
            Illinois
            • 1.0 professional responsibility
            November 24, 2025 at 11:59PM HST Approved
            Indiana
              Pending
              Iowa
                Pending
                Kansas
                  Pending
                  Kentucky
                    Pending
                    Louisiana
                      Pending
                      Maine
                        Pending
                        Maryland
                          Not Offered
                          Massachusetts
                            Not Offered
                            Michigan
                              Not Offered
                              Minnesota
                                Pending
                                Mississippi
                                  Pending
                                  Missouri
                                    Pending
                                    Montana
                                      Pending
                                      Nebraska
                                        Pending
                                        Nevada
                                        • 1.0 general
                                        December 31, 2026 at 11:59PM HST Approved
                                        New Hampshire
                                        • 1.0 ethics
                                        November 13, 2025 at 11:59PM HST Available
                                        New Jersey
                                          Pending
                                          New Mexico
                                            Pending
                                            New York
                                            • 1.0 ethics
                                            November 13, 2025 at 11:59PM HST Available
                                            North Carolina
                                              Pending
                                              North Dakota
                                              • 1.0 ethics
                                              November 13, 2025 at 11:59PM HST Available
                                              Ohio
                                              • 1.0 professional conduct
                                              Pending
                                              Oklahoma
                                                Pending
                                                Oregon
                                                  Pending
                                                  Pennsylvania
                                                  • 1.0 ethics
                                                  January 16, 2026 at 11:59PM HST Approved
                                                  Puerto Rico
                                                    Pending
                                                    Rhode Island
                                                      Pending
                                                      South Carolina
                                                        Pending
                                                        South Dakota
                                                          Not Offered
                                                          Tennessee
                                                          • 1.0 ethics
                                                          November 12, 2024 at 11:59PM HST Approved
                                                          Texas
                                                            Pending
                                                            Utah
                                                              Pending
                                                              Vermont
                                                              • 1.0 ethics
                                                              November 13, 2025 at 11:59PM HST Approved
                                                              Virginia
                                                                Not Eligible
                                                                Virgin Islands
                                                                • 1.0 ethics
                                                                November 13, 2025 at 11:59PM HST Approved
                                                                Washington
                                                                  Pending
                                                                  West Virginia
                                                                    Not Eligible
                                                                    Wisconsin
                                                                      Not Eligible
                                                                      Wyoming
                                                                        Pending
                                                                        Credits
                                                                        • 1.0 ethics
                                                                        Available until
                                                                        Status
                                                                        Unavailable
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                                                                        • 1.0 ethics
                                                                        Available until

                                                                        November 13, 2025 at 11:59PM HST

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                                                                        Available
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                                                                        • 1.0 professional responsibility
                                                                        Available until

                                                                        November 13, 2025 at 11:59PM HST

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                                                                        • 1.0 ethics
                                                                        Available until

                                                                        November 13, 2025 at 11:59PM HST

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                                                                        Approved
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                                                                        • 1.0 ethics
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                                                                        November 13, 2025 at 11:59PM HST

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                                                                        Approved
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                                                                          • 1.0 ethics
                                                                          Available until

                                                                          November 13, 2025 at 11:59PM HST

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                                                                                Available until

                                                                                November 13, 2025 at 11:59PM HST

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                                                                                • 1.0 ethics
                                                                                Available until

                                                                                November 13, 2025 at 11:59PM HST

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                                                                                  • 1.0 professional responsibility
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                                                                                  November 24, 2025 at 11:59PM HST

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                                                                                                              Credits
                                                                                                              • 1.0 general
                                                                                                              Available until

                                                                                                              December 31, 2026 at 11:59PM HST

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                                                                                                              Approved
                                                                                                              Credits
                                                                                                              • 1.0 ethics
                                                                                                              Available until

                                                                                                              November 13, 2025 at 11:59PM HST

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                                                                                                                  November 13, 2025 at 11:59PM HST

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                                                                                                                  Available
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                                                                                                                    • 1.0 ethics
                                                                                                                    Available until

                                                                                                                    November 13, 2025 at 11:59PM HST

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                                                                                                                    Available
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                                                                                                                    • 1.0 professional conduct
                                                                                                                    Available until
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                                                                                                                        Available until

                                                                                                                        January 16, 2026 at 11:59PM HST

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                                                                                                                                • 1.0 ethics
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                                                                                                                                November 12, 2024 at 11:59PM HST

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                                                                                                                                    November 13, 2025 at 11:59PM HST

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