On demand 1h 6m 12s Intermediate

Key Ethics Rules for Estate Planning & Administration Attorneys

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Key Ethics Rules for Estate Planning & Administration Attorneys

Estate planning and administration can be full of twists and turns.  Circumstances are further complicated by the emotions and grief over the loss of a loved one that family members and fiduciaries simultaneously experience. This course will help attorneys learn the key rules they need to know to ethically navigate the estate planning and administration process. After watching this course, attorneys will be able to competently assist their clients, protect themselves and minimize their chances of a malpractice claim, and navigate the complexities of estate planning and administration to ensure they ethically represent clients in this area of the law.

Transcript

Hello, everyone. My name is Lisa Campo. I am a partner at Hale Ball Murphy. We are located in Fairfax, Virginia, which is in Northern Virginia. I am in my 10th year of practice. I practice primarily in the estate. The areas of estate and trust litigation. I do will disputes, trust disputes, breach of fiduciary duty cases, contested guardianships and conservatorships, and some other breach of contract civil litigation mixed in just for something different. But today I'm going to be talking to you about key ethics rules for estate planning and administration attorneys. And I know everyone always dreads the ethics portions of claims that are necessary. So I'm hoping today, though, we can talk about this, have a little bit of fun. I can give you some tips and tricks and hopefully make this an engaging and exciting program and help you figure out how to ethically proceed if you're doing estate planning or administration. So when we start first start with ethics, we have to start with who is your client? And the reason we start with sort of this basic question is, depending on the hat that your client wears, you're going to have to gear your representation a little bit differently. So in the estate context, the hat that your client could wear could be a fiduciary. So either an executor, an administrator of an estate, a trustee of a trust. Some states call them personal representatives, but essentially the person who is in charge of managing and administering the estate or the trust so you can have a fiduciary as a client, you could have a beneficiary as a client. You could have someone who is both a fiduciary and a beneficiary. You might even have a client who's a creditor. And the reason you're going to want to make sure you understand what or what role your client has is there's different duties and responsibilities. So a fiduciary, for example, there are going to be certain requirements for information, providing they're going to be required to provide notice to the beneficiaries, maybe respond to certain information and they are going to have duties that they have to adhere to and comply with. If you represent a beneficiary well, a beneficiary doesn't really have any duties there. They're just there to receive their money. They're entitled to information. And you need to know certain requirements that trigger those rights to information. But they don't have duties. They don't have responsibilities that they are supposed to adhere to. So the representation is going to look a little bit differently. If you have someone who is both a fiduciary and a beneficiary, you may need to look at separating the representation if those interests aren't exactly aligned. So maybe the beneficiary part of the client has to get separate representation from the fiduciary part of the client. So that's again, that's why you want to define sort of who your client is. And then if you have a creditor, again, sort of like a beneficiary, they don't have duties or responsibilities. They just want to get their payment from either the estate or trust they you know, when I represent clients who are creditors, I kind of explain to them your visa. You don't really care what's going on in the estate. You don't really care what's happening. You just want to know when am I going to get my money to satisfy this debt that the decedent had? So again, you want to make sure you define who your client is, what role they they serve, what hat they wear, so that you can make sure you tailor your representation accordingly. And we'll go through this more as we go through the program. I mean, it's also going to help you understand how to avoid conflicts of interest because of the different rights. And we'll get more into conflicts of interest in a little bit. So some other tips that I want to give you sort of before we get into the deep parts of the ethics rules. And regardless of which hat your client wears or which role they serve in, you need to be mindful of unrepresented parties. And so if you've got individuals, either beneficiaries, fiduciaries, whomever, creditors who are unrepresented, you want to be aware of rule 4.3 of the rules of professional conduct. And that rule requires that a lawyer, not state or imply that they are disinterested. The lawyer also has to make reasonable efforts to correct any misunderstanding if they discover that someone misunderstands their role. And also the lawyer cannot give legal advice other than telling the individual you need to go secure independent counsel. If the interest of the unrepresented person has a possibility of conflicting with the interests of the client. So the way you make sure you comply with this rule 4.3 is what I do is any letter that I send to a beneficiary, to a fiduciary, to a creditor, to any interested party before I know for certain if they are legally represented, in which case you have to speak to their counsel. I assume that they're unrepresented and I start all of my letters with sort of an introductory paragraph that says, Please be advised, I don't represent you. I represent Joe Smith, the executor. I can't give you legal advice. If you have questions about your rights, your responsibilities, your duties, your obligations, I would encourage you to seek out independent legal counsel and make it clear that you do not represent them. You are not advancing their interests. And so start that. I always start any letter off with that kind of introductory paragraph. And again, I always assume until I know otherwise, that a party unrepresented and that way you can make sure that you're keeping your communications clear once you find out they are represented, obviously all of your communications then need to be with the attorney who represents them. Related to communications with other persons. You do need to realize that a lawyer cannot make a false statement of fact or law, and you cannot fail to disclose a fact when it's necessary to avoid assisting a avoid assisting a criminal or fraudulent act by a client. So we're looking at rule 41 there that governs your communications with other persons. Keep in mind there is a difference between acting as a zealous advocate and acting unethically. So while you want to advocate for your client, while you want to advance their interest, you do want to make sure that whatever you're doing falls within the rules. So we're not making false statements of fact or law. You can take your position, but we want to be accurate in our statements of fact. And you're not withholding facts that are necessary to avoid criminal or fraudulent activity. If a person is represented. As I said, we're under rule 4.2 and you cannot communicate with that person. You also cannot communicate with that person indirectly, which means that you can't tell your client, Hey, I can't go talk to your sister, but go tell them X, Y, Z. So if you can't do it directly, you can't do it indirectly. So if they're represented all of your communications, be they a fiduciary, a beneficiary, a creditor, need to go to their counsel. So again, as I said, my recommendation when you're communicating with individuals who are not counsel, you want to make sure you make it clear you are not providing legal advice. You are not you know, your letter shouldn't be construed as legal advice. If they have questions, they need to seek someone else or get independent counsel of their own. So those are sort of the basic introductory ideas that we need to have as we go about discussing the ethical rules for administration and estate planning. And we're going to first start with competent representation because we need to have competency and then everything flows from there. So when we talk about competency, we're looking at rule 1.1. And basically under the rules, competent representation requires legal knowledge, skill, thoroughness, preparation and the preparation reasonably necessary for the representation. There's a lot there. So let's kind of break it down. Well, there's some factors that you should ultimately consider in determining your competency. And the first one, the first factors is complexity of the matter. Obviously, a more complex matter is going to require more legal knowledge, more skill, more thoroughness, more preparation than your more straightforward matters. So to determine sort of the level of competency we're going to look at the complexity. And tied to that is the specialized nature of the matter. Obviously, if we're dealing with something that is a more niche area of law than something that is more widespread domestic relations or something where there's a wide knowledge contracts, then you know, as you get more specialized, the legal knowledge, the skill, the thoroughness and the preparation is going to go up. We're also looking at the general experience of the lawyer. So, you know, obviously the longer you've been doing it, the more legal knowledge, the more skill you have. But that doesn't mean and we'll talk about this in a little bit, that a new lawyer cannot have just as much competence as an attorney that's been practicing for 20, 30 years. We're also looking at the lawyer's training. So do you have specializations? Do you have certifications? Did you go get an LLM? Obviously, that's going to come with a different level of competency, the preparation and study the lawyers able to give the matter. So do you in order to maintain competency, maybe you need to put a hold on new cases coming in or new clients so that you can give a more complex matter or a more specialized matter, more time and attention to prepare and study for it. But you're also going to look at is this a situation where you can refer the matter out or you can co-counsel with someone who has proficiency in a particular field in question? I've had instances where I've been doing this for ten years, but you know, someone who has more litigation experience. Bring them on as a co counsel to kind of help me with, you know, a more complex case or if there's more issues involved, then bringing on a co counsel who can sort of help and you can divide the work so that you maintain that competency and you can give adequate representation given the specifics and the unique circumstances of that case. And so I said it before, but if you look at rule 1.1, comment two. Um, I don't want you to be discouraged just because you may be a new lawyer or you don't have a lot of experience under your belt. A newly admitted lawyer can be just as competent as a more experienced lawyer. It just requires necessary study. And when we look at comment two, there's some comforting language in there. So it says a lawyer need not necessarily have special training or prior experience to handle legal problems of a type which the lawyer is unfamiliar. A newly admitted lawyer can be just as competent as a practitioner with long experience. Legal skills like analysis of precedent, evaluation of evidence, legal drafting. They're all required in legal problems. And so just because you've been doing this, you know, shorter than some other attorneys, as long as you refine those skills and you put the necessary study, you can be just as competent as someone who's more experienced. And the comment goes on to say, a lawyer can provide adequate representation in a wholly novel field through necessary study. So again, you just have to be giving it the time and expense to read early, grasp and understand the intricacies of that particular area of law. So just because you haven't done it doesn't mean you can't do it. You just have to give it the level of study that it's necessary for. Preparation is key and can make up for a lack of competence in a certain area. I tell some of the associates that I have in my office where, you know you're not going to be able to make up for someone who's been doing this 20 or 30 years because you've only been doing it, you know, three, 4 or 5 years. But what you can do is make sure you are prepared. Make sure that you've sort of turned the chessboard every which way that you've thought of different things, that you are familiar with, the rules that are at issue in the case, the statutes that are at issue in the case, the case law. And so as long as you have done preparation, you can go toe to toe with someone who has much more experience now. Especially in estate planning and estate administration, you are bound to run into emergency situations. So what do you do in those situations to make sure you are maintaining competency and you are acting ethically? Well, rule 1.1 Comment three says that the assistance should be limited to that reasonably necessary in the circumstances. Basically, you need to think of this as taking it only as far as necessary to address that situation. You're not necessarily dealing with the entire scope of the problem before you, but you are dealing with what is the most emergent situation. So if you have an individual who is on their deathbed and needs estate planning, you are putting together a plan that is going to do as much as possible, but not necessarily be as comprehensive as if you had all the time in the world to do the tax planning. So you're going to want to make sure that you do as much as necessary, but not do more than is necessary if you find yourself in an emergency situation. So we've talked about competency, but how do you maintain competency? Well, by attending this program, you're doing one of the things to maintain competency. You attend classes, you take classes on areas that you aren't familiar with, areas where you maybe need to improve on. Those are all ways to maintain competency. You stay informed about changes in the law. So if you can subscribe to publications, legal publications or feeds or websites, blogs that kind of track changes in the law, especially in certain areas of the law practice areas, that's a good idea. So if you want to sign up for Google feeds or follow blogs just to make sure that you are staying apprised of changes in the law, subscribe to legal publications. I practice in Virginia. We have Virginia Lawyers Weekly comes out every week, gives sort of a synopsis of all the new cases, some of the new, you know, topics in the law. So subscribe to things like that. Follow legal blogs. Become active in your state and your local bar associations, particularly if they have subject matter sections. So, for example, estate and trust become active in there, attend meetings that they have or I know for our Fairfax Local Bar Association Estates and Trust section, they have monthly meetings where they have a speaker come for and they do a luncheon. So that's a great way to kind of maintain competency and stay up to date on changes in that particular area of the law. The other thing, find an attorney who can mentor you and who you can turn to for guidance and advice. Do your own research. And I can't stress it enough, enough. Check others research. So just because someone says, Oh, I did a memo on that, here, let me give it to you, you're going to want to go back through and make sure that that research hasn't changed, that it's still good law, that it's being cited for the right proposition. So you want to make sure that that you are vetting any research that's given to you. So we've talked about competency. The next topic that we're going to go to is confidentiality. And this is a big thing in the practice of law. Confidentiality, I think is the one thing we as attorneys know we have to protect and abide by at all costs. So in this in this section of the program, what we're going to talk about is there's the duty of confidentiality under the ethics rules, and there's also the attorney client privilege. And there are some nuances, but you kind of have to understand both of them to really understand your ethical requirements with respect to confidentiality. So let's start first with just the duty of confidentiality. And we're looking at rule 1.6 of the rules of professional conduct. And so an attorney's duty of confidentiality requires that information related to the representation be maintained in confidence doesn't matter as long as it was obtained in the course of an attorney client relationship. You've got to maintain its confidentiality, which means you can't share it unless the client authorizes you to to share the information. And so you've got to keep it confidential. And the whole point, the whole reason behind confidentiality is we want to encourage full and frank communications between attorneys and clients. We can only help the clients if they tell us everything the good, the bad, the ugly. I tell my clients all the time, You need to tell me it all because I can't really help you if I don't know it all. And if there's bad, bad facts, bad circumstances and. Need to know about them now so we can figure out what is the way that we are going to address them. It is always better for us to work on them together and figure out how we're going to deal with these. Then for me to be in a hearing and find out about it the first time because there wasn't something. So, you know, in inform your clients there is confidentiality. So feel free to tell me everything the good, the bad, the ugly, so we can work on this together. It doesn't mean that I'm going to go share it with everybody or I'm going to blast it, you know, on social media or anything like that. You can't do that. But in order to really give competent representation, you have to know the whole scope of things. And so under the rules, there are certain circumstances where, despite the duty of confidentiality, a lawyer may reveal information. One of the examples to prevent reasonably certain death or substantial bodily harm. So in an instance where someone, you know, there's a risk of harm to someone physically. Maybe you need to make a report to adult Protective Services. That's a situation where you could reveal confidential information that you've obtained through your representation. Obviously, if a court orders it and you have to comply with the court order, then you may reveal information in that circumstances. Um, if you find yourself in a dispute between yourself and the client to establish a claim or a defence in a malpractice case, for example, then the duty of confidentiality, you're going to be permitted to reveal information. And also. Information that's reasonably necessary to protect a client in the event of the lawyer's death, disability, incapacity or incompetence. So what we're talking about there is if you are a solo practitioner. Um, you may. You want to associate with someone who, in the event something happens to you, they can reach out to your clients. They can sort of take your cases for you until other arrangements can be made. So to the extent you need to provide confidential information to them so that you protect a client in the event something happens to you, then your duty of confidentiality can be waived. So same thing, you know, within a firm. So but especially if you're a solo practitioner, you're you're going to want to make sure you have arrangements in place, some kind of succession planning. Continuing on. With the duty of confidentiality, you have to preserve the confidence. Confidential information, whether you have an express attorney client relationship or an implied attorney client relationship or no formal attorney client relationship. So an express attorney client relationship. Obviously, if you've signed a representation agreement, you are representing the client, you've got to maintain confidences in there. And implied attorney client relationship. So if the client thinks they have an attorney client relationship with you, there's a duty to preserve confidences. So to the extent there is not an attorney client relationship, you want to make sure you send a communication to that effect. So. In this ties into the next point also. So we'll talk about there's also the duty to maintain confidence where there is no attorney client relationship, but where the prospective client expects what was told will be kept confidential. So if you have a consultation with a client and they don't retain you, even though they don't retain you, you still have an obligation to keep that information that they provided to you confidential. So and remember, it's what the client thinks, not necessarily what you thought as the attorney. So if you meet with a client and they don't retain you or you finish the representation, you want to make sure you send a communication that makes it clear we met on this date. We had a consultation. You did not formally retain me. We are not operating. I am not operating as though there is an attorney client relationship. So you can make it clear that there's no there's no relationship there. Now, you still have to maintain the information and confidence, but you want to make sure you make it clear to them. So if they don't retain, you send a letter. If if there is kind of going back to what we talked about, communication, under the rules, if there's a mistaken belief about your representation, you want to make sure you send a communication. So just to make it clear there's no attorney client relationship, you should not expect that anything you tell me moving forward will be kept in confidence. Anything prior to that, you will keep in confidence. But once you make it clear that there was no attorney client relationship, that kind of cuts against any belief that they might have, that you're going to be maintaining that information in confidence. You're going to want to be aware of your state specific rules of professional conduct, because there may be situations where a lawyer must disclose confidential information. We have a rule here in Virginia where I practice that gives a list of instances where confidential information must be disclosed. There aren't any under the model rules. So that's why I say you want to be familiar with your state's specific rules. You may have a rule that requires disclosure of confidential information in certain circumstances. Now in the estate planning and the estate administration context, you are bound to probably and more so than any other practice area, run into joint representation. So what do you do in terms of confidentiality when you have a joint representation? Well, in joint representation, your clients have to understand that there is no confidentiality between co clients. They have a right to all the communications that go on between the attorney, they've got a right to the attorney's entire file. So if you have a situation where you have a joint representation commonly husband and wife estate planning comes up all the time. I make it very clear in my consultations with the clients, there are no secrets here among the three of us. If you tell me something and you say, But I don't want to tell my wife or I don't want to tell my my husband, it can't. It can't be that we can't do this. Your your spouse has a right to know. So especially in the estate planning context, if if they're doing a joint plan and everything goes along, great, fine, no problem. But you you're bound to run into this situation where, you know, one of the spouses says, I want to do something different. I want to leave something to a different person. You've got to explain to them there is no confidentiality here I can share with your spouse. Or if your spouse asks me, I have to be honest with them. Now, in cases of common interest, so commonly arises when you represent two defendants, when you've got identical or nearly identical legal interests, you There can be some exceptions to the confidentiality, but it's the proponent of the exception that must establish the cooperation before you're going to be able. So if you want if you have joint representation where you are either representing two defendants who have common interest or you are associating with another attorney who represents another defendant. So let's say you represent Defendant one You have an attorney that represents Defendant Number two, you can keep the confidentiality in the discussions between yourself and your client and the other attorney and their client if you do a joint defense agreement. So. You're going to want to make sure that that protects it basically from outsiders, but it doesn't necessarily protect confidences within that those units. So if you've got a joint representation situation, you do want to be aware that within the the circle of trust, we'll call it, there's no confidentiality there is outside of it. And so you can't have a situation where you have one client say, I don't want you to tell them, but that there's within that circle, there's no confidentiality. So confidentiality in the estate, planning and administration practice area. Some things that I want to highlight specific to this practice area. Be aware that the privilege between the client and the drafting attorney can dissolve when the decedent passes away. So in that case, the drafting attorney may be called to testify concerning matters related to the execution of the will. So if you have a will contest and you're the draftsman, the privilege can dissolve upon the death. If if there are questions about the circumstances surrounding the execution of the will, you could be called to testify if you were the draft drafting attorney. It's going to be governed by your state laws. But just be aware that while the privilege, the confidentiality does extend beyond the death of a client, in certain circumstances, it can be dissolved usually when you have a will contest. Another thing to be aware, aware of in the estate planning and the administration context is the fiduciary exception to the attorney client privilege. And this is it's sporadic in which states follow it. Here in Virginia, it's not clear. We have some courts that have followed it. We have some courts that haven't followed it, that our state supreme court has not come out one way or the other on it. I do know that in other estate, other states such as Delaware, which is sort of where the fiduciary exception arose out of and sort of originated from, does recognize it. But there is the possibility that beneficiaries can obtain confidential communications between you and your fiduciary client. So be aware that that there is a potential exception to the attorney client privilege. So if you are in a state that recognizes the fiduciary exception or in a state like Virginia where it's not clear. Be. Be aware that if your advice could serve as support for a claim of breach of fiduciary duty, breach of trust, fiduciary misconduct, you may need to get other counsel involved to represent the person individually and as a fiduciary. At a minimum, though, the legal services should be paid from the fiduciaries personal funds first. So if you have a fiduciary as a client and you are defending them in a claim of breach of fiduciary duty, you want to explain to the client that you may need to pay these legal expenses on your own personally up front. And then at the end, if we successfully defend the breach of fiduciary duty claim, seek reimbursement from the estate or the trust after the litigation is concluded, that keeps the fiduciary exception inapplicable to communications. So there are some of the cases that interpret the fiduciary exception. They make a distinction on who was paying for the services. If the estate or the trust is paying for the services, then there is an argument that the beneficiaries are entitled to essentially see what their money was paying for. So especially in those in states where it's it's a close call and whether or not it's recognized, if you have the fiduciary pay, the legal fees, personally there's an argument that the fiduciary exception doesn't apply because the beneficiaries don't need to know what I'm doing. I'm using my own personal funds. It's not coming out of their pocket. So fiduciary exception to the attorney client privilege is something you definitely want to be aware of in the estate, planning and administration. Read the cases in your particular state. Maybe you're in a state where it's much clearer that that's applicable. Or you're like me in Virginia where it is clear as mud. So but it's something you want to be aware, especially of in the estate planning and the administration context, because it might not keep your attorney client privileged communications, privileged which Segways into. Just let's talk generally about the attorney client privilege, the attorney client privilege. It is the client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. The attorney client privilege is something that belongs to the client. It is theirs to preserve. It is theirs to waive. So it is it belongs to the client. At the end of the day, the key with attorney client privilege is usually that the communication concerns the subject matter of the attorneys representation. So if it is something entirely unrelated to what you have been retained to represent the client, then there's the argument that the privilege is not going to apply. If it's something directly tied to your representation, then of course the privilege is likely to apply. And like the duty of confidentiality, the objective of the attorney client privilege is to encourage clients to communicate freely with their attorneys without the fear that somebody else is going to find the communication. And that's, again, so that you can provide informed, thorough legal advice comprehensively addressing all of the issues. Keep in mind, though, and we'll discuss this, I have a chart that kind of shows you the difference between the attorney client privilege and the duty of confidentiality. But the privilege, it's an evidentiary rule. And it's going to be strictly construed so. You know, if there's been a waiver, the court's going to look very strictly at was there an attorney client privilege or relationship present? Is this a situation where we should in fact permit a waiver because we want to encourage full and frank discussions between attorneys. That is something that is sacrosanct. We don't want to waive that privilege unless it is absolutely clear. So that's why we're going to strictly construe it. As I said, it belongs to the client. It can be waived either expressly or impliedly. So you've got to have the discussions with your clients that the waiver can be implied. So if they forward one of your emails or your letters to somebody else not thinking of the consequences, they could impliedly waive it. They can expressly waive it if they say my attorney told me X, but they can do it through inadvertence if they forward an email. So you want to make sure you have the discussion with them that you know, especially in estate, planning and administration, if you represent one beneficiary and maybe they're the sort of the spokesperson of the siblings, you want to make it clear. Now, you and I are clients. I am not your brother or your sister's attorney. Don't want to share with them what I what I tell you. If you do find yourself in a situation where there has been a disclosure of privileged communication inadvertently, there are some factors that are usually going to be considered in determining whether the privilege has been waived. First, the reasonableness of the precautions to prevent inadvertent disclosure. If you are not taking any precautions to keep things confidential, then you really aren't going to be able to argue that that there is a privilege. So if you're copying all this huge group of people, then there's an argument that reasonable precautions aren't being taken. Something to think about would be if you're emailing your client using a work email address, that's something that you may want to take into consideration. And what kind of precautions can you put in place to maintain the confidentiality of an email address that the client doesn't really own? The time taken to rectify the error. If you act, the quicker you act, the better. The longer it takes to realize that there's been a disclosure of privileged communications, the harder it's going to be to argue that the privilege should stay in place. So you want to make sure you are being proactive, you are monitoring things. If there's been a disclosure of a confidential communication, you take steps immediately to try and rectify the disclosure. We're also looking at the scope of the disclosure. Is it something significant or is it something insignificant? And perhaps if it's insignificant, then we're not going to, you know, be as concerned with if it's something substantive tied to the representation. And also, we're going to look at the fairness in allowing the party to invoke confidentiality under the circumstances. Is this something where they knew what they were doing and then they're trying to hide behind the privilege? Well, then we're not going to let them use the privilege. If they intentionally did. You know, you have situations where sometimes clients think, well, I'm going to get back at my sibling and I'm going to get back at my brother and sister and show them I was right. The attorney said I was right. Okay. Then on the flip side, if they're going to try and keep it confidential, there's a fairness argument that it's not fair. It is the proponent of the privilege that has the burden of establishing, first an attorney client relationship. If you can't establish an attorney client relationship, you're obviously not going to have an attorney client privilege. So the first stepping stone is establishing the attorney client relationship and then establishing that this was a communication within the scope of that relationship. It's related to the representation. It should be maintained in confidence. It was an inadvertent disclosure. You know, this is not something that we should go against the public policy of encouraging full and frank discussions with attorneys in this situation. So again, be proactive. You know, if your client's being kind of loose lipped and forwarding emails, you need to have that discussion with them like, stop, This is a potential waiver. It's ultimately yours to waive. So I can only take this so much. I can only protect you so much, but you do want to make sure you counsel them. So we've talked about the privilege of the attorney client privilege. We've talked about the duty of confidentiality. There are obviously some overlaps, but there are some differences. So when we look at the attorney client privilege, the difference being it's an evidentiary rule that protects communications from disclosure. So we are only protecting the disclosure of communications. Compare this with the duty of confidentiality, which we're protecting. Anything that any communications within any information shared within that relationship. So we're not concerned with disclosure. We are concerned with any information that you receive is subject to the duty of confidentiality. So it is much more broad than the privilege. The privilege is only looking at disclosure of communications. The privilege, again, it prevents disclosure in court related documents and proceedings. The duty of confidentiality exists beyond court related proceedings. So if you are involved in litigation, you still have the duty of confidentiality. The privilege might not be available to you because you're not involved in court related litigation. But the duty of confidentiality is going to exist beyond just court proceedings. The privilege can be waived by a client, as we talked about, inadvertently. Expressly, directly. It can be waived by the client. On the other side. The duty of confidentiality is going to apply regardless of whether someone is trying to obtain the information or not. So it's not. Confidentiality is only going to be waived in very limited circumstances. When you when you have to reveal it, as we said, if there's a rule under your local rules that require disclosure, but we're not waiving confidentiality unless it's absolutely necessary. Privilege, on the other hand, can be waived and can be waived quite easily sometimes. So something to be aware, something to counsel your your clients on. So now the next area of topic that we're going to talk about is conflicts of interest and how do you identify them, How do you avoid them? What do you do so you don't find yourself with a conflict of interest that can require you to have to get out of a case or make a mess for you? So we'll talk generally conflicts of interest. They can occur both with current clients, but also former clients. So don't think just because someone's a former client, okay, I'm good. I don't have to worry about them anymore. You still have to be aware of them. With respect to and when we're talking about conflicts of interest and we're looking at Rule 1.7 and that defines a conflict of interest as existing, if representation of one client will be directly adverse to another client. The easiest way to think of this plaintiff versus defendant, you obviously can't represent them if they're on opposite sides of the V. Um, but there can also be a conflict of interest if there is significant risk that the representation of one or more clients will be materially limited by your responsibilities to another client, a former client, a third person, or a personal interest of the lawyer. So if there is something that is going to limit. The course of action that you pursue, the advice that you give is going to impact your responsibilities. Then there is a conflict of interest in it, something that you need to address and potentially get out of the case. When we're talking about conflicts of interest, we're really talking about the duty of loyalty to your clients. You know, the paramount concern for clients is that you're loyal to them. So when we're looking at conflict of interest, we are looking at is that loyalty maintained and preserved? And with conflicts of interest, you should be assessing whether you have a conflict of interest at the beginning of the representation. And whenever there is a change in circumstances. So we all best practices, we run our conflicts of interest at the beginning before we take on the client. But you can't just say, okay, I ran it at the beginning, I'm good. If there is a change in circumstances, you need to sort of reassess. Do you have a conflict of interest, especially in the estate planning and the estate administration context? I've had a number of situations. I start off representing one of the beneficiaries. We get a little bit down the road. Brother or sister comes forward and says, okay, I want you to also represent me. So you need to assess at that time also whether or not you've got a conflict of interest between the brother and the sister. So whenever you have a change in circumstances, you want to run through another assessment of do you have a conflict of interest? So don't just do it at the beginning and say, okay, I'm done, I'm good. You want to also reevaluate whenever you get a change in circumstances. So just because you have a conflict of interest, though, does not mean that you are precluded in going forward with that representation. You can get a waiver of that conflict. So in some cases, even if there is a conflict of interest, you can still continue with the representation or under rule 1.7 B And that rule, says a lawyer, may represent a client if each affected client consents. So as long as you get the consent of the clients affected by the conflict, you can proceed forward. But you also have to, as the lawyer, reasonably believe that you will be able to provide competent and diligent representation notwithstanding the conflict. So if you don't feel like you can can do that, then even if the client's consent, it's not a waivable conflict. Obviously, if the representation is prohibited by law, doesn't matter if the clients consent, the conflict can't be waived. You are not going to be able to waive a conflict of interest when you have one client against another in the same litigation or court proceeding. So again, can't cross those the the sides of the V even if the clients were to consent, you cannot. It's a conflict of interest that cannot be waived. It's a good idea to get the consent from the client memorialized in writing. Although be aware that the rules of professional conduct do not specifically require it, However, it is a good idea. So you want to have a form waiver of conflict of interest consent in writing so that if a question comes up, you've got it. So again, just because the conflict of interest arises doesn't mean you automatically stop. There's some more analysis that we need to do, and you may be able to continue even in spite of the conflict. So conflicts of interest, as I say, it can be both with current clients, but it can also be with former clients. And when we're talking former clients, we are talking about Rule 1.9, which addresses conflicts of interest where former clients are concerned. And the test in that situation is going to be whether the representation involves the same or a substantially related matter in which that person's interest are materially adverse to the interest of the former client. So we are looking for is that past client there matter the same or substantially related to this new matter? When trying to identify if there is a conflict of interest. So you should basically ask yourself the question. Am I going to be seen as changing sides? And if the answer to that question is yes, then you've got a conflict of interest. You need to either see if it's a waivable conflict or not take on the representation or get out. Be aware that conflicts of a client of a lawyer. So if you move firms, your former firm's conflicts can be imputed to the lawyer. But we're looking in that situation where information was acquired. So if it is a client that your former firm dealt with, but you never had any involvement with that client, you didn't have access to the information, you weren't provided with any information. It may not be a conflict of interest, but if it was something you were intimately involved with at your former firm, then then there's the possible conflict of interest. So when we're talking former clients, we're not only looking at former clients of the firm you are at now, but former clients of any firm that you were at in the past. And whether or not there's an imputation of the conflicts of interest. So how do you ultimately avoid conflicts of interest? We know what they are. We've talked about what they are. But how do you avoid them? Will you adopt reasonable procedures? The easiest one, complex checks. You do them before you meet with any potential new client to make sure that you can identify early on. You install buffers between the the lawyer and potential clients. So one of my rules is I don't take a call from any potential clients. I don't take a communication from any potential clients. They all go through my legal assistant or paralegal. So if I get a call on my direct line that I don't recognize, I don't answer it in the event it's a potential client, until I can have my support staff run the conflict, check to make sure we are okay to proceed forward. But you also need to have vigilant data entry so your complex checks are only going to be as good as the data entry that you put into your system that you are running them against. So I tell my staff, when you get the names of potential clients, I want you to have them spell it. Let's not assume that we know the spelling. Obviously there are some spellings that are more common, but nowadays people spell their names all kinds of different ways. So you want to make sure you are getting them to give you the spelling. You are also getting their legal names, not a nickname. We've we've had situations in my firm where somebody put in a nickname, somebody ran the complex check on the full legal name and it didn't catch right away. So we figured out. But again, so vigilant data entry, your conflicts checks are only going to be as good as the data that you put in. So you want to make sure the staff is spelling things correctly. You're using full legal names, you get middle names. If it's a common name, you're getting as much information that should a conflict of interest pop up, you are able to identify it, which means that you as the lawyer, need to supervise your staff and make sure that they are being diligent. Um, the other way to avoid conflicts of interest. Clearly written representation agreements that describe the scope of the work to be performed. So my representation agreements have. I am representing client Joe Smith on administration of the estate related to Jane Smith. So it's clear so that if a conflict of interest situation arises, you can go back to that representation agreement and you can find out what was the scope of the work. So especially when you're dealing with former clients, you can find out, do I have a same or substantially related matter? What was the scope of my representation? So in the estate planning and administration practice area, specifically potential conflicts of interest that you need to be aware about specific to this practice area. Married couples, they're often going to seek counsel for their estates together. So it's you need to consider, are there possible conflicts here that would preclude the joint representation? So things that you want to be looking out for? Are there children of a prior marriage and that they're going to provide differently for than their spouse? Is the spouse in agreement with that? Are they on board? Do they know about the children from a prior marriage? Are there premarital agreements in place that might put their interests in in conflict? So with married couples estate planning especially, you're going to want to kind of think through is there anything here that could potentially be litigation down the road? And what do I need to do to either address that or is this something where I can't go forward? Other potential conflicts of interest. We kind of talked about it earlier. Your executor and trustee who is also a beneficiary, are the interests aligned? If there's a divergence of interest, then do we do we have a situation where the client needs to get representation in their fiduciary capacity and representation in their individual capacity? Same thing if you've got Co-trustees and Co-executors. Are they on the same page? Do they get along? Is there potential for discourse where I could have a conflict of interest down the road? Do I need to take steps now? Do I need to get out altogether? Especially so we talked about you do your conflicts check in the beginning, but you also, as things change in the situation where you have co-trustees and Co-executors, you are always going to want to be assessing. Are they still on the same page? Are they in agreement? And when they when it looks like there might be a divergence, then there's action that might need to be taken. Similar if you've got a fiduciary who's also a creditor. Do we have interests that diverge that we need to be aware of and take action? So the next topic, the next area that we're going to talk about, everyone's favorite attorney's fees. We all, at the end of the day, like to get paid. So what are our ethical rules on attorney's fees? Well, first and foremost, the guidepost for all things fees must be reasonable. Reasonable. So under rule 1.5 of the rules of professional conduct, the fee has to be reasonable and explained to the client. So in your representation agreement, you want to make sure that you are explaining your hourly rate. If you're billing hourly, if it's a contingent matter, how is that to be calculated? What kind of costs, What kind of expenses are the client responsible for as much information as possible about the fee and to determine reasonableness of the fees factors that we're looking at the time and labor required the novelty and difficulty of the issues and the skill required. Obviously, your more complex, your more time intensive cases, your more difficult issues could command a higher fee than your more simple, straightforward fees. Same thing. You know, these are also if we're looking at is this something where we're doing on a flat fee or are we doing it hourly or are we doing it contingency? These are all factors that we're going to be looking at. One, what fee to charge the nature of the fee to charge and how do we keep it reasonable? The likelihood that representation will preclude other employment. So if you're not going to be able to take on other cases because of the complexity or the novelty, then maybe that justifies a higher fee than if it's something that's just going to fit in with your regular practice and you just charge you regular fee, the customary fee in the locality. Obviously something in one part of the country may be different than another part of the country. So we're looking at what is charged in the locality, the amount involved and the results obtained. So what was the amount in dispute and what was ultimately obtained is going to be looked at in as whether or not the fee was reasonable. With this one, we're kind of looking backwards a little bit. So you do sort of have to predict looking forward, you know, if the amount involved, what's the likelihood result that I'm going to obtain, make sure my fee is reasonable, given that the time limitations imposed either by the client or the circumstances, the nature and length of the professional relationship with the client, that can also determine the reasonableness, the experience, reputation and ability of the lawyer. Obviously your your younger lawyers, your less experienced lawyers, the a reasonable fee is going to be lower than someone who's been doing this for a decades. And then whether the fee is fixed or contingent, that's going to factor into the reasonableness. So fee agreements, your representation agreement, as I said, should explain the fee. Even though a written agreement is not required by the rules of professional conduct, it is good practice to have that representation that spells out the scope so you can use it for conflicts of interest, spells out your fees here. That representation agreement does a lot of things. So while it's not required, it is a best practice. It is something you should do. If your fee is contingent, be aware that there are certain cases where you cannot have a contingent fee under the rules. That's in domestic relations and defense criminal defense cases with a contingent fee arrangement. You should state in writing, as I said, how the fee is to be determined, and that includes the percentage that's going to accrue to the lawyer. And you're going to want to make sure you spell out is it a different percentage if the case settles? Is it a different percentage if the case goes to trial, is it a different percentage in an appeal? What are the litigation and other expenses to be deducted from the recovery? So usually you're going to want to state our expert witness fees. Are they coming out of that contingent percentage or is that something separate from that amount? And also, as I said, whether expenses are to be deducted before or after the fee is calculated. So you want to spell it out as much as possible in reasonable languages. If the services are provided at a flat fee, you want to state what's included in that rate and what's excluded. So in my firm, we do estate planning documents on a flat fee basis. However, what's excluded from that flat fee is the initial consultation that's billed at an hourly rate. But then we state that that flat fee for the document preparation that includes phone calls to discuss changes, that includes emails back and forth. So they are charged one rate to get the documents through to end and signed. There's an administrative fee that covers you, the paper and the binder for putting everything together, but we spell out what it is that that flat fee covers and what's excluded. So the fees and the estate planning and the administration context, some things to be aware of in this practice area. Personal representatives are generally allowed to receive reimbursement for reasonable expenses incurred in administering, and that can include attorney's fees. So if you are a fiduciary, it's possible that the fees can be paid out of the estate, especially if you're doing administration. Keep in mind, though, that there are some states in Virginia is one of them, where attorneys fees that are related to tasks or duties that could have been performed by a personal representative but are done by the lawyer should be segregated from tasks or duties where the lawyer specialized knowledge is needed. So the easiest distinction is here in Virginia, we have to file accountings every year in a state administration. That's something that the personal representative should be doing. If the attorney does that, then that's going to be segregated and something that's going to have to be done differently than if it were litigation fees. Beneficiaries can always challenge the reasonableness of attorneys fees. So you're going to want to be aware of that, that just because the client signed off on it, you may need to also answer to the beneficiaries. So now let's talk about specific ethical considerations In estate planning, you are bound to run into a client with diminished capacity, so you're going to want to be familiar with Rule 1.14. And basically the major takeaways from that rule are you need to maintain as normal a client relationship as possible. Just treat them as as you would any other client. If there is risk of physical, financial or other harm, you may be able to take necessary protective action. So reporting to adult protective services if necessary. But your duty of confidentiality is going to remain in place unless you've got to do something to protect the client's interests no matter what. Though, even with diminished capacity, your client's best interests have to be served by whatever you do. So when you're faced with a client with diminished capacity, ask yourself some questions. Does the client have testamentary capacity? How do I maintain a normal relationship? Do I have an emergency situation? Is there a threat to the client's interest? And what do I need to do to make sure I'm avoiding harm? Is this a situation where a guardian or a conservator needs to be appointed? Do you need to make a report to Adult Protective Services? So some questions to keep in mind with diminished clients. So with that, you're going to need to know the capacity to make a will. And it's different. Under each state, the requirements are going to be different, but basically across the board, you're going to need someone of legal age and of sound mind. Generally. That's going to involve someone who knows the nature of their property, who their family members are, how they want to distribute their property. And they understand that they are making a will to handle their affairs after death and capacity is going to be determined at the time the document is executed. So when we're talking about capacity in the estate planning context, we also have to talk about undue influence. And it generally arises when someone's free will is supplanted by another, usually a fiduciary of some kind, or there's some kind of confidential relationship. You can have it arise with wills, trusts, deeds, powers of attorneys and contracts. And it's something that usually takes place behind closed doors without any witnesses. So it can make it hard to identify and even harder to prove your definitions and your elements necessary to prove or going to differ among the states. So you're going to want to be familiar with the standard in your state. But with estate planning and estate administration, you are bound to run into the topic of undue influence. So what are some general warning signs of undue influence? Well, if you have isolation, so if you've got a client who's being isolated from other family members, control if you have a situation where somebody is exerting control over the client, if they seem to be in fear, if they are heavily relying upon someone else, if they are favoring a particular beneficiary without sufficient justification or explanation, those can all be warning signs. It doesn't automatically mean there is undue influence, but it is something that you should look into a little bit more If you see these things and at the end of the day, you're going to want to trust your gut. If something just doesn't feel right, then maybe you need to take further action. So if you know and don't let yourself be a tool of undue influence, if someone brings you their mom or dad and they clearly diminished capacity, they have no idea what's going on. Feel free to stop the meeting or have the the son or the daughter leave the room, meet with the person individually, you know, kind of walk through things, watch their reaction to information that you're providing. Are they surprised? You know, so when you go to sign a document, walk through the provisions, do they seem to be on board? Do they seem surprised with something? So, you know, if you need to. Stop the meeting. Be vigilant. Be aware. Another area you're likely to run into is breach of fiduciary duty. And breach of fiduciary duty is basically the failure to act as the law obligates one to act. And a fiduciary is just someone who's required to act for the benefit of another. So this can arise when your clients, the fiduciary or if you are the fiduciary, if you're, you know, you're the fiduciary who's administering the estate. So be aware of the circumstances that constitute a breach of fiduciary duty. Um, one thing that comes up when drafting attorneys serve as executors. There's nothing that precludes a drafting attorney from being the executor. And you can receive compensation for your services as the executor, but you're going to want to be aware of rules 1.2 and 1.8, which deals specifically with situations. When you have the drafting attorney who is also acting as the fiduciary. So you should typically ask the client to sign a separate letter acknowledging that the client's been advised that there's other options available. Here in Virginia, we call it an oh 1515 letter. So it just basically tells them, you've been advised there are other options. You don't have to select me, but if you do, you know, I can receive compensation. Um, bequest to drafting attorney. They're not a good idea, but they do come up more frequently. We're under rule 1.8 C and that prohibits certain conduct related to soliciting, accepting or preparing instruments that give the lawyer a gift. There is an exception. However, if you draft a will or trust for your mom or your dad. You obviously you could you know, you can be a beneficiary of that, obviously, but generally, unless there's some kind of familial relationship. It's just not a good idea. Just don't do it. Could raise a presumption of undue influence. It's likely to engender a will contest. Um. Under rule 1.7. It prohibits prohibits representation by an attorney if there's a personal interest in the matter. So it's just not a good idea. So how to avoid ethical problems? I will leave you with these these tips on making sure that you are conducting yourself in an ethical way. Attention to detail is key. You need to be focused. You need to give time and attention. Document the termination or conclusion of representation so it's clear that the attorney client relationship is stopped. Use plain common language in your representation agreements. Not the place for legalese. Just use basic everyday language. Know the warning signs of lack of capacity and undue influence. So you are not a tool of that. You're not allowing someone to use your knowledge and expertise for bad. If in doubt, one thing you can do, and I've had to do it in cases is obtain a physician's opinion about the client's susceptibility to undue influence or testamentary capacity. If you're not sure if they've got testamentary capacity, have them go get a physician's opinion so that at least you've covered your bases. Meet with the client alone if necessary. Walk through the document. Watch the client's reactions. Do they seem to be on par with what you're talking about? And at the end of the day, trust your gut. If something doesn't feel right, it probably isn't. So trust your gut. And I hope that with everything we've talked about you, I've given you some tips and tricks, some things to avoid, so you don't find yourself having ethical problems. And you can make sure that your practice is in accordance with the ethical rules and you are giving the best representation to your clients possible. Thank you for your time today, and if there's any questions, please feel free to reach out to me. My contact information is in the materials.

Presenter(s)

LCJ
Lisa Campo, JD
Partner
Hale Ball Murphy

Course materials

Handout

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                                                        • 1.1 ethics
                                                        Available until

                                                        June 21, 2024 at 11:59PM HST

                                                        Status
                                                        Approved
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until

                                                        June 30, 2024 at 11:59PM HST

                                                        Status
                                                        Approved
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until
                                                        Status
                                                        Pending
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until

                                                        June 17, 2025 at 11:59PM HST

                                                        Status
                                                        Approved
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until

                                                        October 31, 2024 at 11:59PM HST

                                                        Status
                                                        Approved
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until

                                                        June 17, 2025 at 11:59PM HST

                                                        Status
                                                        Available
                                                        Credits
                                                        • 1.0 ethics
                                                        Available until

                                                        June 19, 2028 at 11:59PM HST

                                                        Status
                                                        Approved
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Eligible
                                                          Credits
                                                            Available until
                                                            Status
                                                            Not Eligible
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Offered

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