August 01, 2016 Feature

Ethics in Estate Planning

Sara Rittman

Many different ethics issues can arise in estate planning. This article will concentrate on two of the most common: confidentiality and conflict of interest.

Multiple Clients

One of the most common situations most lawyers face during estate planning is joint representation. When two or more people come to you, together, for estate planning, you must immediately and clearly address both confidentiality and conflict of interest. (Joint representation may involve two or more clients. For purposes of this article, I will assume it involves two clients.)

Confidentiality. In any joint representation, the only safe approach is to have a clear understanding among the attorney and clients that there will be no secrets related to the representation. If this is not in a written agreement signed by the clients, it should be confirmed in writing. It is fine to include this agreement in the same document as the fee agreement, but it should be specifically discussed with the clients.

The agreement should extend past the execution of documents and include any time either client communicates with you regarding the estate plan. The agreement also should include an understanding about what you will do if one of them does provide you with information but insists that you should keep it secret from the other. You could all agree that you will tell the secret to the other client anyway, or you could all agree that you will withdraw without explanation. The hope is that the very existence of the agreement will prevent the clients from providing you with secrets.

Although you will find the concept of an “all secret” agreement discussed in articles from time to time, I do not think it is a viable approach. I do not believe it is reasonably possible to embark on a joint representation when there has been an agreement that the clients can provide information to you that you will not be free to share with the other client. There is no obligation to share every piece of information that you obtain. However, if the information is relevant to the other client, or to the representation as a whole, you must be able to fulfill your duty of communication under ABA Model Rule of Professional Conduct (hereafter Model Rule) 1.4.

The types of things a client may tell you run from mundane information related to daily life to important information related to estate planning. Obviously, you do not have an obligation to tell the other client that one client said she ran into a mutual friend recently or where she had lunch before she met with you. On the other hand, if he tells you he has a child from a previous relationship and the other client is unaware of that child, you have an absolute obligation to share this information with the other client.

By covering the “no secrecy” agreement as soon as possible, you should be able to eliminate most of the instances in which a client shares information with you but does not want you to share the information with the other client. In the course of presenting this agreement, you should also encourage the clients to consider whether they each want to seek separate counsel. This suggestion may provide an “out” for the client who has a secret and wants to continue to keep it from the other client.

Don’t be tempted to limit the “no secrecy” agreement. Although you may not have a duty of communication regarding every piece of information you obtained from one of the clients, information frequently falls in the middle of the spectrum between information you must communicate and information you need not communicate. You must be able to communicate freely with each client without worrying about any limitations.

Conflict of interest. If one of the clients has a secret, it may create a conflict. If the client knows that disclosure to you will result in disclosure to the other client, the client may keep that information secret even from you. However, it may affect the client’s decisions and goals. Owing to the secret information, the client may want the estate plan to do things that don’t make sense to you or the other client. This can result in a conflict between the clients.

Even if neither of the clients is keeping any secrets, they may have different ideas about their estate plans. For example, they may want to leave different amounts or items to different beneficiaries. They may even want to take completely different approaches to estate planning. The fact that they have different views does not automatically mean you have a conflict of interest. You may be able to assist them with resolving their differences by providing them with information about options and the effect of different types of estate planning. They do not need to agree to the exact same approach in each estate planning document, but their approaches cannot be adverse to the interests of the other. If their interests are adverse to one another, you have a conflict of interest under Model Rule 1.7. Ultimately, if they are unable to resolve their differences sufficiently, you may need to withdraw completely from the representation and send each party to a separate attorney.

Unfortunately, on some occasions, the clients will come to an agreement and execute an estate plan only to have one of the clients come back to you alone and express a desire to have the plan amended—or to set up a brand-new plan. As soon as you are aware that this client wants to make changes to the previously executed estate plan, you should remind the client that you have an obligation to share the information with the other client. If this client is trying to undermine the agreement previously reached, reminding the client of the agreement may cause the client to hesitate about changing the estate plan or, at least, go to a different lawyer.

Multiple People, One Client

Sometimes more than one person will come to you for estate planning for one person. For example, Daughter may bring Mom in for estate planning. You need to recognize that this is not a joint representation situation but that you still need immediately and clearly to address confidentiality and conflict of interest issues.

You need to speak with Mom with no one else present, unless Mom needs assistance communicating. If Mom needs assistance, it should not come from Daughter or anyone who is a potential beneficiary. Once you have that private conversation, you can discuss with Mom whether she authorizes you to share information with Daughter and others. You also can find out whether she agrees that Daughter may be present during your meetings with Mom.

Even if Mom agrees that Daughter may be present, Daughter does not become a joint client. You need to make this clear to Daughter, and you need to keep this clear in your own mind.

Confidentiality after the Representation

Aside from the issues of confidentiality between the clients that might arise after the estate plan is executed, issues can arise when other family members seek access to information you obtained. Family members may seek this information because the client has become incompetent or after the client dies. Your duty of confidentiality under Model Rule 1.6 survives the death of the client. Swidler & Berlin v. United States, 524 U.S. 399, 118 S Ct. 2081, 141 L.Ed.2d 379 (1998).

The best way to address this possibility is to discuss it while your competent client is meeting with you for estate planning. Is your client willing for you to disclose all information if the client becomes incompetent or dies? If so, get this consent in writing. If your client is not willing for you to disclose everything, will the client consent to some disclosure? If you have done anything to document the client’s competence, this is the time to get consent from the client to disclose. Under Model Rule 1.6, all information related to the representation is confidential.

Did you videotape the client to help establish competence? Did you obtain an evaluation of the client from a doctor to help establish competence? If you did so but did not obtain the client’s written consent to disclose it, it may not be as helpful as intended. Information about the client’s reasons for favoring or disfavoring a beneficiary can be even more sensitive. It is not safe to assume that the client would consent to disclosure of all this information. Discuss it and get consent, to the extent the client will give consent.

In some jurisdictions, it may be considered permissible for you to disclose if you believe it furthers the client’s interests, even if you didn’t obtain express consent from the client. In other jurisdictions, you need to obtain a court order if you did not obtain client consent. When in doubt, do not disclose without a court order. Model Rule 1.6(b)(6) allows disclosure pursuant to a court order.

In some jurisdictions, the personal representative, executor, or guardian may have the authority to consent to disclosure. In others, no one other than a judge can authorize disclosure of a deceased client’s information. Again, when in doubt, do not disclose without a court order.

Your Obligation When Subpoenaed

If there is a will contest or similar litigation, you may be subpoenaed to testify and produce your file. ABA Formal Opinion 473 addresses your obligation upon receiving such a subpoena. As always, research the specific rules and opinions that apply in your jurisdiction.

If you are subpoenaed and your client is living and competent, you need to notify your client, or your client’s counsel in the litigation. If the client is living but incompetent or allegedly incompetent, the client should have counsel, whom you should notify. The subpoena itself does not constitute a court order for purposes of Model Rule 1.6.

If the client gives you informed consent, you may disclose information consistent with that consent. Model Rule 1.0(e) defines “informed consent,” which must involve communication of “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Merely asking for consent is not sufficient for it to be “informed consent.” The consultation necessary to obtain “informed consent” can, and probably should in many cases, occur with the client’s current counsel.

If the client is not available to resist the subpoena, you will be responsible for asserting all reasonable arguments that the information should not be disclosed or that the disclosure should be limited. If the court orders disclosure, you generally have no obligation to appeal that ruling.

Conclusion

Confidentiality and conflict of interest are two of the most common ethics issues that arise in estate planning. Identifying and addressing these issues early on can prevent a lot of headaches later.

Sara Rittman

Sara Rittman is the principal of Rittman Law, LLC, in Jefferson City, Missouri. Her practice focuses on helping licensed professionals with ethical issues and disciplinary matters.