Prof Ethics applied to Estates Flashcards
Do you have to have an engagement letter for estate matters?
Not required by law, but it’s a good idea. Helps to establish who is the client.
Contingency fees require it.
What do you do if a client fiduciary breaches duties?
The estate lawyer is a fiduciary to the fiduciary.
Best bet is to slow down and review the ethics rules.
When can a lawyer reveal confidential information shared by a client?
Rule 1.6 Lawyer MAY reveal confidential information to the extent the lawyer reasonably believes necessary to
– Prevent death or substantial bodily harm;
– Prevent client committing a fraud of substantial
injury, or in which the client used her lawyer’s services
What is the fiduciary exclusion that allows for revealing confidential information from a client?
IN has NOT recognized it.
Since fiduciaries owe duties to others, the confidentiality rule to allow those owed duties to be harmed is against public interest.
Fiduciary Exclusion excludes the situation where a
fiduciary seeks legal assistance.
What does Rule 1.2 mean for a lawyer if a client says they want to do something criminal or fraudulent?
Lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent
Cmt 9: Counseling the client not to commit the fraud
is not “assisting” the criminal
Cmt 10: Lawyer may not continue assisting a client in
conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. **Noisy withdraw.
Does the lawyer have a duty to report information to the court if withdrawing b/c of questionable conduct?
Rule 4.1(b), cmt 3
• In extreme cases, substantive law MAY require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.
• No Indiana substantive law requiring disclosure.
How long does client keep estate records?
IN law is silent.
Prof Rule 1.15 talk about safekeeping client records of account funds and other property for five years after termination.
IRS says 3 years after filing if all complete, but if records incomplete or claim a loss, seven years.
If you did not file a return, indefinitely.
What rule governs dual representation of spouses?
Rule 1.7 (a) …shall not represent a client if [it] involves a concurrent conflict of interest: adverse to another client or a risk that representing one or more clients will be limited by responsibilities to another or former client or someone with personal interests for the lawyer.
§(b) allows waivers.
What is the rule around informed consent in writing?
Rule 1.0(b) Confirmed in Writing
– “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (n) for the definition of “writing.” See paragraph (e) for the
definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter
What does Rule 1.7 require?
RPC 1.7 comment 1: [1] Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.
