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

Importance of Facts. A lawyer who is engaged by a client in an estate planning matter should inform the client of the importance of giving the lawyer complete and accurate information regarding relevant matters such as the ownership and value of assets and the state of beneficiary designations under life insurance policies and employee benefit plans. Having so cautioned a client, the lawyer is generally entitled to rely upon information supplied by the client unless the circumstances indicate that the information should be verified. The lawyer should verify the information provided by the client if the client appears to be uncertain about it or if other circumstances create doubts about its accuracy.

Supervising Execution of Documents. Generally, the lawyer who prepares estate planning documents for a client should supervise their execution. Of course, he or she may arrange for another lawyer to do so. If it is not practical for a lawyer to supervise the execution or if the client so requests, the lawyer may arrange for the documents to be delivered to the client with written instructions regarding the manner in which they should be executed. The lawyer should only do so if the lawyer reasonably believes that the client is sufficiently sophisticated and reliable to follow the instructions. Note that in some jurisdictions the supervision of the execution of estate planning documents constitutes the practice of law which a lawyer may not delegate to a member of the lawyer's staff who is not a lawyer.

Competence Requires Diligence and Communication with Client. Competence requires that a lawyer handle a matter with diligence and keep the client reasonably informed during the active phase of the representation.(19)

(1) MODEL RULES OF PROFESSIONAL CONDUCT Scope (1993) [hereinafter MODEL RULES].

(2) Goldberg v. Frye, 266 Cal. Rptr. 483 (Ct. App. 1990).

(3) 512 N.E.2d 1276 (Ill. App. Ct. 1987), appeal denied, 522 N.E.2d 1244 (Ill. 1988).

(4) Id. at 1280.

(5) 839 P.2d 1303 (Nev. 1992).

(6) Id. at 1307; see also Fickett v. Superior Court, 588 P.2d 988 (Ariz. Ct. App. 1976) (holding that the lawyer for the guardian had a duty to protect the ward's interests).

(7) See infra ACTEC Commentary on Model Rule 1.7 (Conflict of Interest: General Rule); infra ACTEC Commentary Example 1.7-3.

(8) See infra ACTEC Commentary on Model Rule 1.2 (Scope of Representation); infra ACTEC Commentary on Model Rule 4.1 (Truthfulness in Statements to Others).

(9) 101 N.Y.S.2d 217 (App. Div. 1950), order modified by 103 N.E.2d 721 (N.Y. 1952).

(10) Id. at 725 (alteration in original) (quoting Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928)).

(11) See infra ACTEC Commentary on Model Rule 1.2 (Scope of Representation).

(12) MODEL RULES, supra note 1, at Preamble.

(13) Id. at Scope.

(14) SELECTED STATUTES, RULES AND STANDARDS ON THE LEGAL PROFESSION 138 (John S. Dzienkowski ed., 1993).

(15) 1 Laws. Man. on Prof. Conduct (ABA/BNA) Sec 01:3 July 10, 1992).

(16) See supra part II.

(17) See infra ACTEC Commentary on Model Rule 1.6 (Confidentiality of Information) (noting that confidentiality concerns must be addressed prior to involving another lawyer).