One of the topics on the agenda at the Academy’s recent Summit in New Orleans was how to avoid malpractice litigation. All too often, when there’s a malpractice claim, there’s an ethics claim as well. An ethical violation serves as strong evidence against an attorney in a malpractice action. Of course, it’s best to avoid ethical violations to begin with. Here are three tips for doing just that:
- Be Competent. As attorneys, we’re charged with the duty to provide competent representation to our clients. As a practical matter, this means that if you’re faced with an unfamiliar or unusually complex case, you need to put on the brakes before accepting it. Think about what additional study you need to undertake before handling the matter. Consider co-counseling with a more experienced attorney. If these options aren’t practical, consider turning down the case.
In every case you accept, be sure to define the scope of representation. Communicate clearly, in writing, exactly what you will – and won’t – do. For example, if you recommend a revocable trust and a gift to an irrevocable trust, you may be quite competent to prepare the trusts, but you might not feel competent to prepare the required tax returns. If this is the case, spell out for your client exactly which functions you’ll perform, and which you will not be doing.
- Be Prompt. In addition to competence, we have a duty to act with reasonable diligence and promptness in representing our clients. The duty to act with reasonable promptness can be broken down into two elements:
- Set reasonable expectations for your client from the very start of your representation.
- Meet those expectations.
- Avoid Conflicts of Interest. This can be a particularly tricky area for estate planning attorneys. The nature of our practice means that conflicts of interest are inherent. We most commonly see this in the form of competing interests between spouses. Does this mean we can’t represent married couples? Of course not, but it does mean we need to be aware of potential conflicts and deal with them effectively.
Under Model Rule of Professional Conduct 1.7(b), a lawyer may represent a client, notwithstanding a conflict of interest, if:
- the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- the representation is not prohibited by law;
- the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
- each affected client gives informed consent, confirmed in writing.
The American College of Trusts and Estates Counsel (“ACTEC”) publishes comments on the Model Rules that are quite helpful. You can access them here.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Road, Suite 240
San Diego, CA 92124
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