ETHICAL CHALLENGES IN ESTATE PLANNING: STAYING ON COURSE By Robert S. Balter, J.D., LL.M. (Tax) Gratz College, Elkins Park, Pennsylvania December 4, 2009 02/22/2020 1 Basic Sources of Ethical Considerations for Estate Planners Pennsylvania Rules of Professional Conduct & Comments American College of Trust and Estate Council, Commentaries on the Model Rules of Professional Conduct. Provided with permission from ACTEC ABA Ethics Opinions
Pennsylvania Bar Association (PBA) Ethics Opinions Pennsylvania Ethics Handbook (PBI) Philadelphia Bar Association Ethics Opinions Pa Supreme, Superior, Common Pleas and Orphans Court 02/22/2020 Office of Disciplinary Counsel v. Datsko, 1501 Disciplinary 2 The Big Picture as Seen by the Greats Earl Warren: In civilized life, law floats in a sea of ethics. Each is indis-pensable to civilization. Without law, we should be at the mercy of the least scrupulous; without ethics, law could not exist. In F. J. Cook, The Corrupt Society, The Nation , 1-8 June 1963 at 453. Univ of Penn Motto: Leges sine
moribus vanae. Felix Frankfurter: From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have throughout the centuries been compendiously 02/22/2020described as moral character. Schware v. Bd. of Bar 3 Examiners, 353 US 232, 247 (1957). Housekeeping Items Letterheads, business cards, etc. A lawyer who is also a certified public accountant may indicate on that he is both a JD and a CPA provided that he also indicates that his accounting and legal practices are separate. The lawyer may use letterhead in his legal practice that includes his name, a designation such as "attorney at law," the address of his law office, and a statement that his law practice is "limited to" or "concentrates in" tax, estate planning, and probate matters so long as that is true. PBA Ethics Opinion 91-50 (undated). In order to list a certification, the certifying organization
must be approved by the Pennsylvania Supreme Court, and no estate planning organization has been: not Society of Trust and Estate Practitioners, not ACTEC, not ACTaxC, not National Association of Estate Planners and 4 02/22/2020 Councils. Novosielski Pending in Supreme Ct In Re Novosielski, 2007 Pa Super 292, 937 A. 2d 449 (Pa. Super. 2007), appeal granted, 954 A. 2d 569 (7-15-2008), argued March 2, 2009. And see In Re Estate of Piet, 2008 PA Super 72, 949 A. 2d 886 ( Pa Super 2008). When the execution of a valid will pre-dates the creation of a challenged MPAA joint account, we must consider whether the intentions expressed in the will can be read in a manner that is consistent with the decision to place assets in the MPAA joint account. If we cannot find such consistency the expression of
intent in the will must control unless we determine that the creation of the joint account functions as a revocation of the validly executed will. 937 A. 2d at 457. 02/22/2020 For the time being, the safe course seems to be to execute a codicil to the will confirming a joint 5 account in favor of the surviving joint account Counsel to the situation Brandeis confirmation hearing. Everests of the Mundane Forberg Article Jarndyce and Jarndyce drones on. You cannot live without lawyers, and you certainly cannot die without them. J. Choate, 1879. The probate, trust and estate planning practitioner is frequently found in a thicket of multiple representations where the conflicts between the
various parties interests are subtle, pervasive, indirect, continuously shifting and, in many instances, even difficult to recognize. . . . Link et al., 02/22/2020 Developments Regarding the Professional Responsibility of the Estate Planning 6 Lawyer: The Effect of the Model Rules of Professional Conduct, 22 Real Property, Engagement agreements In General First, always have one. Second, take the opportunity to outline: Confidentiality Attorney client privilege Loyalty Billing practices Scope of representation (note ACTECs are inadequate) Termination of Representation See generally PBA 99-120. Ownership and copying of files 02/22/2020 Cost is imposed on counsel absent agreement to the
contrary. 7 Representing Individuals An attorney owes every client a duty of undivided loyalty and independent judgment. PARPC 1.7, Comment 1. And see Grievance Comm v. Rottner, 152 Conn 59 (1964). A lawyer is to pursue a clients interests with zeal in advocacy. PARPC 1.3, Comment 1 (1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a clients cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the clients behalf.
There are 02/22/2020 exceptions. no estate planning 8 Representing Individuals 2 A lawyer is to pursue his clients cause with competence in practice. PARPC 1.1 Consider Estate of Newhart, in which Judge Drayer instructed: 02/22/2020 It is the Courts opinion that, with very few
exceptions, the attorney should supervise the execution of testamentary documents or arrange to have a qualified individual do so. As evidenced by the many contests in this state, often the basis for a challenge to a testamentary document is found at the time of execution. If the scrivener is not present to assure that the execution is done properly, he is failing his clients interests. Newhart Estate, 22 Fid. Rep. 2d 383, 390 (Drayer, J.) (Mont. Co. 2002), 9 Representing Individuals 3 Individuals for whom estate planning is done spawn others: Heirs Trustees, Trust Protectors and Personal Representatives Corporations and LLCs Buyers of clients assets Powers of Attorney Health Care Agents
Are you counsel for them all? Are you some of them? All of them? 02/22/2020 10 Representing Individuals When Heirs Get Involved Jake comes to Lawyer and states that today was not a good day for Mom to come in, Mom is in a care facility and has good days and bad. Jake can tell Lawyer both what Mom has and what Mom wants in her planning documents, including a durable power of attorney in favor of Jake. Jake says he is Moms only child, and offers to pay all the fees. This example raises the following ethical issues: 02/22/2020
Who is the Client? Can you draft a will for someone without explaining it 11 to them? Who is the Client? In Pennsylvania, Mom is. This is because the son, Jake, is deemed to be acting for and on behalf of his mother. 02/22/2020 Philadelphia Bar Association Opinion 2008-10 (092008) (finding no attorney client relationship with the intermediaries since they were there on behalf of B and were not there as independent clients or potential clients);
PBA Informal Inquiry 99-162 (2-11-2000) (Jones asks atty Y to prepare documents for Smith; Jones communication is not protected under RPC 1.6 because she is not Ys client; Smith is the client. Jones asked Y to prepare the documents on Smiths behalf and for him to sign. Compare PBA Informal Opinion 2003-31 (Daughter12 Representing Individuals
Drafting a Will for a Third Person In Pennsylvania: If a decedent had no knowledge of the contents of a document purporting to be his will, it cannot be said that such a document is a declaration of that decedents intentions. In Re Estate of Cohen, 445 Pa 549, 553, 284 A. 2d 754 (1971) (Roberts, J.) (Purported will void). You must assure that a testator has intelligent knowledge regarding the natural objects of his bounty, of what his estate consists of what he desires done with his estate, even though his memory has been impaired by age or disease* as well as the required knowledge of the contents of the will. 02/22/2020 Doing that without making the testator the13 Representing Individuals Powers of Attorney In my view, counsel must meet with the
client alone to determine capacity and understanding.* In PBA Ethics Opinion 2003-31, Daughter approached lawyer in her own right under a pre-existing power of attorney from Mom. The opinion directs counsel: 02/22/2020 You must assess whether Mother is competent now and in agreement with the planned actions of Daughter. Daughter may have a conflict of interest, and hence, you, as Counsel for Daughter, are also in a conflict of interest situation as to what may be financially most advantageous for your client, the attorney-in-14 Representing Individuals Powers of Attorney Approaches If Mom is in a care facility, get a nurse or doctor to review the drugs the client is taking and try to make that nurse or doctor a witness to any documents to be executed.
Get a power of attorney in place as soon as feasible, so that further degeneration of the clients condition does not impair the clients capacity further. Once a power of attorney has been validly executed, PARPC 1.14 Comment 4 allows a lawyer to ordinarily look to the representative for decisions on behalf of the client. 02/22/2020 For another example in which heirs approached attorneys to 15 prepare documents for a client, see PBA Opinion 2008-10 (Sept., Representing Individuals Powers of Attorney What responsibilities does an attorney have when a power of attorney is clearly in the clients interests, as in the prior example, but may be used by the agent to divert Moms wealth to the agent? PBA Ethics Opinion 92-64* opines that an attorney may have a duty to withhold
information and perhaps take action to interdict acts that are contrary to the clients best interests. See also Rule 1.14(b). 02/22/2020 If, as in the example, there is only one child, does that solve the problem? What if there are two children, one of whom does not wish to be involved or doesnt have the time to be involved, then what? 16 Representing Individuals Heirs Paying Fees If you are Moms lawyer, then Rule 1.8(f) applies: (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyers independence of professional judgment or with the clientlawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (Emphasis supplied).
And see PARPC 1.7 Comment (13): A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyers duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyers representation of the client will be materially limited by the lawyers own interest in accommodating the person paying the lawyers fee or by the lawyers 02/22/2020 17 responsibilities to a payer who is also a co-client, then the lawyer must comply Representing Individuals Heirs Paying Fees Who gives the informed consent and who is informed where the client is infirm? If a power of attorney has already been validly executed, PARPC 1.14 Comment 4 allows the lawyer to ordinarily look to the representative for decisions on behalf of the client as above. However, if the representative is acting adversely to the principals welfare, a lawyer may have obligations to protect the principal under PARPC
1.2(d). See also ABA Formal Ethics Opinion 96-404, Client Under a Disability (August 2, 1996) 02/22/2020 What constitutes acting adversely when you are trying to deplete the estate18 Representing Individuals Having now guided Jake through the required informed consents from Mom (a matter the substance of which we will address in more detail under multiple representations below), Jake now suggests that perhaps you should be Moms executor. 02/22/2020 19 Representing Individuals
Accepting Fiduciary Appointments The Rules ABA Formal Opinion 02-426 (May 31, 2002) and PBA Informal Opinion 96-36 (March 5,1996) Helping testator to select a fiduciary is one of a lawyers important responsibilities in providing estate planning for his client. The lawyer is required by Rule 1.4(b)to discuss frankly with the client her options in selecting an individual to serve as fiduciary. This discussion should cover information reasonably adequate to permit the client to understand the tasks to be performed. A lawyer may disclose his own availability, but should advise what is best. 02/22/2020 A lawyer must reveal the compensation he will20
Representing Individuals Accepting Fiduciary Appointments Approaches A lawyer considering accepting a fiduciary appointment should put his or her agreement to do so in writing. The agreement should explain what tasks the lawyer would likely do himself or herself and what tasks he or she would expect to hire others to do, e.g.: 02/22/2020 Investment management. Custody of securities. Bookkeeping and accounting. Estate litigation. Duties to beneficiaries (also for counsel to the estate or trust). Fees and the basis for them both for the fiduciary and for 21
counsel. Representing Individuals Sales We often assist clients in sales of their assets: Sales to grantor trusts Installment sales Sales for business succession planning. In all of these, we are pursuing our clients objectives, often tax objectives. 02/22/2020 Can we set the terms for the buyers at the same time? Is AFR always mutually perfect? Oftentimes , we have created the buyers (e.g., trusts). 22 And that brings us to a fork
in the road 02/22/2020 23 Multiple Representation Generally Whenever more than one client is represented at the same time in the same matter, the potential for conflict is always there. This happens to us all the time. And as lawyers, we are push envelope type personalities: the Consider PBA Opinion 95-72, the chutzpah ruling: 02/22/2020
The lawyer asked whether he could represent both the estate of the murdered spouse and the spouse charged with that murder! 24 Of course, PBA said no: To state the question is to Multiple Representations Married Couples It is extraordinarily common for married people to seek estate planning device together, much as they might buy a house together. There are two general approaches: Treat the couple as one client (by far the most common). Treat each spouse as an individual client. 02/22/2020 Each requires informed consent. Each should have a written engagement letter outlin-ing the nature and scope of the representation,
billing and fees, confidentiality and the extent of the attorney-25 Multiple Representation Required Procedure re: Conflicts The Pa Rules of Professional Conduct do not leave it to us to determine client conflicts at large. Rather, Rule 1.7 requires: 02/22/2020 (2) Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and
4) if so, consult with the clients affected under paragraph (a) and obtain their informed26 Multiple Representation Conflict of Interests Rule 1.7 also tells us that a concurrent conflict of interests exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. * * See also 121 of the Restatement Third of the Law Governing Lawyers ( 02/22/2020 121.The Basic Prohibition of Conflicts Of Interest. Unless all affected clients and other necessary persons consent to the representation under the limitations and conditions provided in 122, a lawyer may not represent a client if the representation would involve a conflict of
interest. A conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by27 the lawyer's duties to another current client, a former client, or a third Married Couples The Rules Marriage itself does not create a conflict of interests.* If both are a single client, then secrets of one cannot be kept from the other, unless both agree by informed consent. If secrets are not to be kept, they must agree to that limitation. If both are a single client, and a real adversity develops, the lawyer will be forced to withdraw from both representations, causing loss to all.
* Task Force of the American Bar Association Real Property, Probate and Trust Section, Report of 02/22/2020 28 the Special Study Task Force Committee on Professional Responsibility, Comments and Multiple Representation Married Couples Multiple representation of estate planning clients can be a good thing. The ACTEC Commentaries: General Nonadversary Character of Estates and Trusts Practice; Representation of Multiple Clients. It is often appropriate for a lawyer to represent more than one member of the same family in connection with their estate plans, more than one beneficiary with common interests in an estate or trust administration matter, co-fiduciaries of an estate or trust, or more than one of the investors in a closely held business. See ACTEC Commentary on MRPC 1.6 (Confidentiality of Information). In some instances the clients may actually be better served by such a representation, which can result in more economical and better coordinated estate plans prepared by counsel who has a better overall understanding of all of the relevant family and property considerations. The fact that the estate planning goals of the clients are not entirely
consistent does not necessarily preclude the lawyer from representing them: Advising related clients who have somewhat differing goals may be consistent with their interests and the lawyer's traditional role as the lawyer for the family. Multiple representation is also generally appropriate 02/22/2020 29 because the interests of the clients in cooperation, including obtaining cost Married Couples Are there material limitations Consider these between spouses. potential conflicts Drafting an ILIT: Definition of a Spouse! ERISA retirement plans: Joint and survivor annuity required unless non-participant spouse consents.
But rolling over to an IRA avoids the required consent! Advising of both hardly represents either without material limitation. Joint property: spouses may desire certainty as tow what the survivor will do with jointly held property after the death of the first. 02/22/2020 Will you be counsel on both sides
of that30 Married Couples Other Potential Conflicts Differing dispositive desires One heir in the business, one (or even two) not. One spouse wants to benefit a charity, the other doesnt. Gift splitting Is this benefitting one more than the other? Estate equalizing The lesser propertied spouse is getting, the more propertied spouse is giving. And you are protecting both? Outright versus in trust 02/22/2020
31 Married Couples Conflicts PBA 95-153 Consider the situation in PBA Opinion 95153. Attorney represents an elderly client, both infirm. They agreed to sell the house, Wife appointing stepson her power of attorney for carrying out the sale. Then Wife begins to have second thoughts while both Husband and stepson know they have to go through with the sale. 02/22/2020 The opinion holds that there is a potential conflict of interests. What if wife revokes her power of attorney to32 Married Couples Confidentiality With respect to confidentiality and the
attorney-client privilege, PARPC Rule 1.7, Comment 30 provides: (30) A particularly important factor in determining the appropriate-ness of common representation is the effect on client-lawyer confiden-tiality and the attorneyclient privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. (Emphasis supplied). 02/22/2020 For example, New Jersey has held that if one spouse has an out of wed-lock child, once you find out, you must tell the33 Married Couples Confidentiality And Comment 31 to PARPC 1.7 continues: (31) As to the duty of confidentiality, continued common representa-tion will almost certainly be inadequate if one client asks the lawyer not to disclose to
the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loy-alty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that clients interests and the right to expect that the lawyer will use that information to that clients benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of 02/22/2020 obtaining each clients informed consent, advise34 Attorney Client Privilege Jewish Antecedents? The 3-judge court in traditional Jewish law was called a beit din. The judges were rabbis who tried the case on behalf of the complainants. It was most important witnesses to testify. to
find expert These witnesses traditionally had to be men who were observant in Jewish law, making it impossible for them to lie. There was no attorney-client privilege, but there was a rabbi-congregant privilege. 02/22/2020 The idea of having a lawyer represent a victim or client, I am told by Rabbi Kleinman at KI, was not35 part of traditional Jewish practice. Married Couples The Bottom Lines Estate planning is an enormously personal practice. Confidences are an every-day occurrence and mar-ried couples deserve to have the options spelled out for them clearly.
Spell it out in writing and get the clients informed consent. Even though the rules say that consent does not have to be in writing or even confirmed in writing, GET IT IN WRITING. As Prof. Pennell says, It would be just plain stupid to have done the right thing in dealing with clients36 02/22/2020 and not be able to prove it. J. N. Pennell, WEALTH Married Couples Other Conflicts Prenuptial agreements Because one of the validating circumstances for a pre-nuptial agreement is independent counsel for each party, representing both is neither effective or ethical. If one party refuses to get other counsel, be sure you only represent one party and gave the other adequate opportunity to secure independent counsel, reciting same in the agreement. See, e.g., J. N. Pennell, WEALTH TRANSFER PLANNING AND DRAFTING, Ch 3 at page 20.
02/22/2020 37 Fiduciary Conflicts Cardozo A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctillio of an honor the most sensitive, is the standard of behav-ior. As to this there has developed a tradition that is un-bending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the disinte-grating erosion of particular
exceptions. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will38 02/22/2020 Fiduciary Conflicts Who is the Attorneys Client? Judges Ott and Taxis have written (in Pew Trust below): Following the great majority of cases, each outside of this Commonwealth, we affirm the view that in the absence of an expressed agreement to the contrary, the only client of counsel for the fiduciary is the fiduciary. But that reflects only part of their thinking: 02/22/2020
However, this non-client relationship does not absolve counsel for the fiduciary from being charged with certain duties and obligations to the beneficiaries. . Hence, (law firms) duties run not only to its client, but also to the non-client Trust beneficiaries. Pew Trust, 16 Fiduc. Rep. 2d 73, 74 (O.C., Mont Co. 1995). Reviewed critically in PBA Ethics Opinion 96-75 (6-19-96) (citing Dorsett v. Hughes, 353 Pa. Super 129, 133, 509 A. 2d 369 (1986) as contrary); and see Pew Trust (No. 2), 16 Fiduc. Rep. 2d 80, 8439 What obligations does the attorney owe his nonclients? Beneficiaries of a trust have a right to see routine correspondence between the trustee and its counsel during the trust administration and that right may not be denied unless the correspondence was devel-oped in the contemplation of litigation and has been appropriately cloaked with the
attorney-client privilege. 02/22/2020 Follansbee v. Gerlach and Reed Smith, 22 Fiduc. Rep. 2d 319 (O.C., Allegh. Co. 2002). 40 What other obligations does a fiduciarys counsel owe? It seems that counsel for a fiduciary owes an obliga-tion of due care to the fiduciary estate, upon which beneficiaries are entitled to surcharge if breached. In Re Estate of Westin, 2005 Pa. Super 158, 874 A. 2d 139, 146-147 (2005, Beck, J.): 02/22/2020 Our Supreme Courts language in Lohm [440 Pa
268] clearly implies that the standard of care for counsel to an estate is at least equivalent to that of the executor. The Lohm court com-pared the standard of care expected of the executor and of coun-sel to the estate and determined that because counsel had long experience with the tax problems at issue, he would be held to an even higher41 Does an Ethical Violation Give Rise to a Cause of Action? No. Maritrans G. P. Inc. v. Pepper, Hamilton & Sheetz, 524 Pa. 415, 573 A. 2d 1001 (1990), revg, 392 Pa. Super 153, 572 A. 2d 737 (1990). But the conduct described in an ethical violation may serve as the basis for liability independently of its constituting a violation of the rules. E.g., Thomas v. Lysaght, 11 Pa. D. & C. 4th 238 (Dauphin County, 4-19-1991) (Dowling, J.). 02/22/2020
42 Other Challenges in the Fiduciary Context Philadelphia Opinion 95-1: Cases that are too old? Some estates as old as 35 years, lawyer incompetent. What can new counsel do? Withdraw. Work with the families. Notify legatees of status, forcing them to seek removal. Philadelphia Opinion 95-11: Embezzlement. Philadelphia Opinion 98-7: Deceased lawyers estates. 02/22/2020 Notice to clients containing: 43
Sale of a Law Firm Rule 1.17 Rule 1.17 has been adopted (last amendment as of May 1, 2009). The rule itself is in the handout. Requires selling lawyer to cease private practice of law. Contemplates only sale to a single lawyer or firm. Requires notice to clients 02/22/2020 Including identity of purchaser. Statement that client has the right to representation by the purchasing lawyer under preexisting fee arrangements;
Statement that the client has the right to retain other counsel or to take possession of the file; and Statement that the clients consent to the transfer of the representation will be presumed if the client does not take any action or does not otherwise object within 60 days of receipt of the notice. Fees charged clients shall not be increased by 44 Is a lawyer required to probate a clients will? Philadelphia Opinion 98-22: Attorney is co-execu-tor under decedents will; other executor (surviving spouse) does not wish to probate because of the extremely simple nature of the arrangements. Lawyer wants to return file to surviving
spouse. Advice: 02/22/2020 [T]he committee cautions the inquirer to be sure that his own conduct in not probating the will is not criminal. Further, the inquirer may not aid and abet 45 a fraud by the client. Miscellaneous Rules Philadelphia Opinion 2008-5: Referral Fees Can an attorney pay a referral fee to an attorney serving as executor? Only if the executor either reduces his own compensation by the amount of the referral fee or adds referral fee to the estate. And see Estate of Harrison, 745 A. 2d 676 (Pa. Super. Ct. 2000).
PBA Formal Opinion 01-300: Retaining Clients Executed Estate Planning Documents: 02/22/2020 An attorney may retain these documents for a client. 46 Fiduciary Conflicts In Summary Justice Frankfurter seems to have well summed up this area when he wrote: To say that a man is a fiduciary only begins the analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 85-86 (1943). It is only fair to say that we are still answering those questions today.
02/22/2020 47 In Conclusion And so it may always be There is, perhaps, no profession, after that of the sacred ministry, in which a hightoned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict duty and propriety; in which so many delicate and difficult questions of causistry are
continually arising. George Sharswood 02/22/2020 (Chief Justice of Pennsylvania and reviver of the University of Pennsylvania Law School), 48 in Professional