ACTEC commentaries on the Model Rules of Professional Conduct - Adopted by the Board of Regents of the American College of Trust and Estate Counsel - October 1993

Real Property, Probate and Trust Journal, Winter 1994

I. PREFACE

Neither the Model Rules of Professional Conduct (Model Rules) nor the comments to them provide sufficiently explicit guidance regarding the professional responsibilities of lawyers engaged in a trusts and estates practice. Recognizing the need to fill the gap, ACTEC has developed the following Commentaries on selected rules to provide some particularized guidance to ACTEC Fellows and others regarding their professional responsibilities. The Commentaries may also assist courts, ethics committees and others concerned with issues regarding the professional responsibility of trusts and estates lawyers. Although the Commentaries refer specifically to the Model Rules, their content is also often applicable to the Model Code of Professional Responsibility (Model Code), which remains in effect in some states and, like the Model Rules, does not provide sufficient guidance to trusts and estates lawyers. The Commentaries generally seek to identify various ways in which common problems can be dealt with, without expressly mandating or prohibiting Particular conduct by trusts and estates lawyers. While the Commentaries are intended to provide general guidance, ACTEC recognizes and respects the wide variation in the rules, decisions, and ethics opinions adopted by the several jurisdictions with respect to some of the subjects.

II. REPORTER'S NOTE

The following Commentaries build upon the substantial body of prior writings by numerous authors, including Luther Avery, Jackson Bruce, Gerald Johnston, Jeff Pennell and Ronald Link. Their contributions have enriched the literature and sharpened our sensibilities. While acknowledging their contributions, we hasten to add that they are in no way responsible for the organization or content of the Commentaries.

A. Basic Themes of Commentaries

The main themes of the Commentaries are: (1) the relative freedom that lawyers and clients have to write their own charter with respect to a representation in the trusts and estates field; (2) the generally nonadversarial nature of the trusts and estates practice; (3) the utility and propriety, in this area of law, of representing multiple clients, whose interests may differ but are not necessarily adversarial; and (4) the opportunity, with full disclosure, to moderate or eliminate many problems that might otherwise arise under the Model Rules. The Commentaries additionally reflect the role that the trusts and estates lawyer has traditionally played as the lawyer for members of a family. In that role a trusts and estates lawyer frequently represents the fiduciary of a trust or estate and one or more of the beneficiaries. In drafting the Commentaries we have attempted to express views that are consistent with the spirit of the Model Rules as evidenced in the following passage: "The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself."(1)

B. Scope of Representation

The Commentaries encourage a full discussion between lawyer and client of the scope and cost of the representation. Lawyers increasingly use engagement letters to cover these and other matters related to the representation. The trusts and estates practice is generally nonadversarial, client-centered and involves a high degree of client autonomy. The nature of the practice and the autonomy of clients allow lawyers and clients, including multiple clients, to define the scope and nature of the representation in ways that diminish the adverse effects that might otherwise flow from conflicts. The Commentaries also note that while the representation of multiple clients by a single lawyer involves some risks, it often provides the clients with the most economical and effective representation--particularly where the clients are members of the same family. Finally, the Commentaries encourage lawyers to act in ways that promote the resolution of disputes without resort to the courts.

C. Duties of Trusts and Estates Lawyers Incompletely and Inconsistently Described

In large measure the duties of trusts and estates lawyers are defined in many states by opinions rendered. in malpractice actions, which provide incomplete and insufficient guidance regarding the ethical duties of lawyers. Compounding the problem, the decisions in malpractice actions and the legal principles upon which they are based vary considerably from jurisdiction to jurisdiction. Courts have perhaps had the most difficulty in defining the role and duties of the lawyer who represents a fiduciary in the fiduciary's representative capacity with respect to a fiduciary estate (who might be said to represent the fiduciary generally For example, in a malpractice action brought by the beneficiaries of a fiduciary estate against the lawyer for the fiduciary, a California appellate court stated that the lawyer owed no duty to the beneficiaries of the estate.(2) Other appellate courts have reached the opposite conclusion, including ones in California. Thus, in In re Estate of Halas,(3) the court stated, "The attorney for the executor, therefore, must act with due care and protect the interests of the beneficiaries."(4) Similarly, in Charleson v. Hardesty,(5) the court wrote that the lawyer for a personal representative owes the beneficiaries "a duty of care and fiduciary duties."(6)