Ethical Considerations for Estate/Tax Planning - ABA YLD 101 Practice Series

By Blake R. Laurence

Most attorneys have a strong sense of what is ethical. What some attorneys (and estate planners are not immune) may lack, however, is a sense of the ethics issues and problems that can arise.

  1. Joint representation: (husband and wife): In most cases, they are BOTH the client, even if one of them is your primary contact. This means that anything that one spouse tells you should be disclosed to the other spouse. For example, if Joe and Jane Q. Public come to see you for estate planning, and Joe pulls you away and tells you "secretly draft my Will to leave everything to my mistress," you have a duty to inform Jane (your client as well) of Joe's comment.

  2. Multiple-generation representation: Maybe you represent mom and dad as well as one or more of their grown children. Just remember that they are ALL your clients, and you cannot favor one set of them (usually mom and dad) over the others.

  3. The third party: At times a son or daughter will call you and say: "I want you to do a Will for my mom." Who's your client and who do you represent? The answer is that you represent the mom and NOT the son or daughter. You should be sure to talk to mom directly and in person to ensure that HER wishes are carried out and not what son or daughter wants. Moreover, you will want to make certain that she is not being unduly influenced by their son or daughter. 

  4. The payor: What happens when mom comes into your office but son or daughter is the one paying your bill? Who is your client? Your client is mom. The son or daughter does not have any right to know what was talked about during your meeting. To inform son or daughter about the content of the meeting will destroy the attorney-client privilege between you and mom.

  5. Competency: You are not just a scrivener but are tasked with evaluating whether your client is mentally competent to execute the documents that they are about to sign. When meeting with your client you want to be sure to make small talk about current events and see what their answer is. If you are unsure as to a client's competency, ask them to be evaluated by a doctor and get a report. A small amount of precaution may just be the difference between a properly executed document and you being named as a witness in Estate Litigation.

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