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

Ronald C. Link, et al., Developments Regarding the Professional Responsibility of the Estate Administration Lawyer: The Effect of the Model Rules of Professional Conduct, 26 REAL PROP. PROB & TR. J. 1 (1991).

Jeffrey N. Pennell, Professional Responsibility: Reforms Are Needed to Accommodate Estate Planning and Family Counselling, 25 U. MIAMI INST. ON EST. PLAN. ch. 18 (1991).

John R. Price, Professional Responsibility in Estate Planning: Progress or Paralysis? 21 U. MIAMI INST. ON EST. PLAN. ch. 18 (1987).

Bruce S. Ross, Legal Malpractice in Estate Planning and Administration, 18 ACTEC NOTES 248 (1993).

William Schwartz, Whose Wealth Is It Anyway? Impediments to the Realization of an Owner's Plan of Disposition, 25 ARIZ. L. REV. 671 (1983).

James R. Wade, When Can a Lawyer Represent Both Husband and Wife in Estate Planning, PROB & PROP. ( Mar.-Apr. 1987, at 13.

James R. Wade, Current Developments in Ethical Problems Faced by Estate Planners, EST. PLAN., 1992, at 95.

VI. COMMENTARIES

As mentioned in the Reporter's Note,(16) the annotations that follow each Commentary include references to a broad range of cases, ethics opinions and secondary authorities that deal with the professional responsibility of trusts and estates lawyers. Reflecting various approaches taken in different jurisdictions, the cases and ethics opinions often cannot be harmonized. The summaries of the cases and ethics opinions are not part of the Commentaries. They are included for illustrative purposes only and do not necessarily reflect the judgment of the Reporter or ACTEC regarding the issues involved.

MODEL RULE 1.1

Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ACTEC COMMENTARY ON MODEL RULE 1.1

Meeting Needs of Client. A lawyer who initially lacks the skill or knowledge required to meet the needs of a particular client may overcome that lack through additional research and study. The needs of the client may also be met by involving another lawyer or other professional who possesses the requite degree of skill or knowledge.(17) Thus, the lawyer may choose to consult another lawyer while maintaining the client's confidential information or may obtain the client's consent to associate another lawyer to whom disclosures will be made. The lawyer should be candid with the client regarding the lawyer's level of competence and need for additional research and preparation, which should be taken into account in determining the amount of the lawyer's fee.(18)

Mistaken Judgment Does Not Necessarily Indicate Lack of Competence. The fact that a lawyer does not precisely assess the tax or substantive law consequences of a particular transaction does not necessarily reflect a lack of competence. In some instances the facts are unclear or disputed, while in others the state of the law is unsettled. In addition, some applications of law and determinations of facts made by courts or administrative .agencies are not reasonably foreseeable. In other instances the complexity of a transaction or its unusual nature generates uncertainties regarding the manner in which it will be treated for tax or substantive law purposes and may prevent an otherwise thoroughly competent lawyer: from accurately assessing how the transaction would be treated for tax or substantive law purposes.