ETHICS ISSUES FACING TRUST AND ESTATE LAWYERS

1 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ ETHICS ISSUES FACING TRUST AND ESTATE LAWYERS Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ETHICS rules, and you should check those when seeking ETHICS guidance. For ease of use, these analyses and citations use the generic term "legal ETHICS opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. _____ 2017 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work.

2 You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn with any questions or requests. ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ i TABLE OF CONTENTS Hypo No. Subject Page TRUST and ESTATE Planning: Defining the Client and the Representation 1 Unsolicited Communications from a Prospective Client .. 1 2 Identifying the Clients in a Multigenerational Family Setting .. 12 3 Identifying the Client When Representing a Closely Held Corporation or Its Owners .. 15 4 Defining the End of a Relationship .. 18 5 LAWYERS ' Retention of Documents as Evidence of a Continuing Relationship .. 27 TRUST and ESTATE Planning: Joint Representations 6 Joint Representations: Creation.

3 30 7 Joint Representations: Loyalty ISSUES .. 46 8 Prospective Consents .. 56 9 Joint Representations: Information Flow Duties in the Absence of an Agreement .. 62 10 Joint Representations: Information Flow Duties Under an Agreement to Keep Secrets .. 96 11 Joint Representations: Information Flow Duties Under a "No Secrets" Agreement .. 103 12 Joint Representations: Privilege Ramifications in a Later Dispute among Jointly Represented Clients .. 113 TRUST and ESTATE Planning: Conflicts of Interest between Clients 13 Representation Adverse to a Current ESTATE Planning Client .. 132 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ ii Hypo No. Subject Page 14 ESTATE Planning Representation Involving a Current Client in an Unrelated Matter.

4 133 15 ESTATE Planning Representation Involving a Current Client in a Related Matter .. 136 16 ESTATE Planning Representation Involving a Former Client: General Rule .. 140 17 Representation Adverse to a Former ESTATE Planning Client .. 143 18 ESTATE Planning Representation Involving a Former Client on a Related Matter .. 148 19 Fees Paid by a Non-Client .. 152 TRUST and ESTATE Planning: Conflicts between Clients and LAWYERS 20 Clients' Gifts to LAWYERS : General Rule .. 162 21 Clients' Gifts to LAWYERS : Imputation of Disqualification .. 171 22 LAWYERS Preparing Documents in Which They Are Named as Executor or Trustee .. 175 23 LAWYERS Maintaining Control Over Clients' ESTATE Planning 181 24 Dealing with Clients Who Have Diminished Capacity.

5 184 25 Ability to Refrain from Providing Material Facts to a Client with Diminished Capacity .. 193 26 Preparing TRUST and ESTATE Documents for a Client with Borderline Testamentary Capacity .. 195 27 Taking Directions from an Impaired Client's Fiduciary .. 197 28 Limiting Liability to TRUST and ESTATE Clients .. 201 29 Selling Law-Related Services .. 206 30 Agreement to Maintain the Confidentiality of Certain TRUST and ESTATE Techniques .. 218 31 File Ownership .. 221 32 File Ownership if Clients Have Not Paid LAWYERS ("Retaining Liens") 253 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ iii Hypo No. Subject Page TRUST and ESTATE Planning: UPL and MJP 33 Nonlawyers (Such as Bank Employees).

6 266 34 Assisting UPL Violations .. 270 35 Nonlawyer Staff (Such as Paralegals) .. 277 36 Paralegals: Attorney-Client Privilege ISSUES .. 290 37 In-House LAWYERS Representing the Client/Employer's Executives .. 294 38 In-House LAWYERS Representing Their Client/Employer's Customers .. 300 39 Multijurisdictional Practice: Relationship to the LAWYERS ' Home State .. 308 40 Multijurisdictional Practice: LAWYERS ' National Reputation .. 318 41 Multijurisdictional Practice: Practice in Federal Tribunals .. 321 42 Multijurisdictional Practice: LAWYERS ' Limiting Their Practice to "Federal" Matters .. 328 TRUST and ESTATE Planning: Confidentiality and Privilege 43 General Confidentiality Duties .. 335 44 Background Facts about Representations and Communications.

7 337 45 Client Demeanor .. 342 TRUST and ESTATE Planning: Document Preparation 46 Effect of a Client's Agents' Presence .. 345 47 Waiver Impact of Disclosed Privilege Communications to a Client's Agent .. 363 48 Effect of a LAWYERS ' Agents' Presence .. 366 49 Privilege Protection for Communications To and From LAWYERS Providing Non-Legal Services .. 374 50 Draft Documents .. 377 51 Expectation of Disclosure .. 381 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ iv Hypo No. Subject Page 52 Metadata .. 386 53 Duty to Disclose an Adversary's Document Error .. 420 54 Relying on Independent Contractors .. 423 55 Outsourcing .. 432 Liability for ESTATE Planning Work 56 Liability to Non-Clients for Negligence.

8 443 57 Liability to Non-Clients for Intentional Torts .. 474 58 Liability for Failing to Inform Former Clients of Changes in the Law .. 476 TRUST and ESTATE Administration: Conflicts of Interests 59 Identifying the Client .. 480 60 Conflicts of Interest Caused by a Lawyer's Role as Executor or Representation of an Executor .. 485 61 Fiduciaries' LAWYERS ' Duties to Beneficiaries .. 490 62 Joint Representations in ESTATE Administration .. 500 63 Effect of a Joint Representation in ESTATE Administration .. 503 64 Representing a Person Who is Both an Executor and a Beneficiary .. 506 TRUST and ESTATE Administration: Privilege and Work Product ISSUES 65 Ex Parte Communications .. 512 66 Witness-Advocate Rule .. 515 TRUST and ESTATE Administration: Other ISSUES 67 Duration of the Confidentiality Duty and Attorney-Client Privilege.

9 518 68 Ownership of the Confidentiality Duty/Attorney-Client Privilege after a Decedent's Death: General Rule .. 520 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T. Spahn (5/9/17) \ v Hypo No. Subject Page 69 Ownership of the Confidentiality Duty and Privilege if the Decedent's Representative Has Interests Adverse to the 530 70 Exception for Those Taking Under a Will .. 534 71 Fiduciary Exception .. 546 72 Crime-Fraud Exception .. 553 73 Work Product: "Litigation" Requirement .. 562 74 Work Product: "Anticipation" Requirement .. 566 75 Creating Protected Work Product .. 576 76 Waiver of the Work Product Protection .. 580 ETHICS ISSUES FACING TRUST and ESTATE LAWYERS Hypotheticals and Analyses ABA Master McGuireWoods LLP T.

10 Spahn (5/9/17) \ 1 Unsolicited Communications from a Prospective Client Hypothetical 1 The patriarch of your town's wealthiest family died about three months ago. Another law firm in town handled the patriarch's ESTATE planning, which has opened up a very lucrative opportunity for you after his death -- because one of the patriarch's children hired you about two weeks ago to represent her in challenging her father's will. You were flattered (but also alarmed) to receive an unsolicited email this morning from the patriarch's widow/executor -- seeking to employ you in what the widow/executor anticipates will be a lawsuit by the patriarch's daughter challenging the will. The widow/executor's email provides some confidential information about the patriarch that would be useful in the lawsuit you plan to file on the daughter's behalf.