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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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| A lawyer shall act with reasonable diligence and promptness in representing a client. |
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| Timetable. Whether the representation relates to inter vivos estate planning or the administration of a fiduciary estate, it is usually desirable, early in the representation, for the lawyer and client to establish a timetable for completion of various tasks. Insofar as consistent with providing the client with competent representation, the lawyer should adhere to the established schedule and inform the client of any revisions that are required, whether attributable to the lawyer or to circumstances beyond the lawyer's control. The client or others may be seriously disadvantaged if the lawyer fails, within a reasonable time, to provide the client with the agreed legal services. In such cases the client may be harmed and intended beneficiaries may not receive the benefits the client intended them to have. |
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| Avoiding Misunderstandings as to Scope of Representation. The risk that a client will misunderstand the scope or duration of a representation can be substantially reduced or eliminated if the lawyer sends the client an appropriate engagement letter at the outset of the representation. If a lawyer is retained by a new client with respect to a single matter, the representation may terminate when the work on the matter is completed; on the other hand, the representation may become dormant. See the discussion of a dormant representation in the ACTEC Commentary on MRPC 1.4. Where the lawyer has served a client in a variety of matters, the client may reasonably assume that the representation is active or that the client may reactivate the representation at any time. A lawyer in these circumstances should clarify with the client the scope of the representation and the expectations of the client. A client may terminate a representation at any time and, subject to the requirements of MRPC 1.16, a lawyer may also terminate a representation at any time. |
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| Planning the Administration of a Fiduciary Estate. The lawyer and the fiduciary should plan the administration of an estate or trust in light of the fiduciary's obligations to the courts, tax authorities, creditors and beneficiaries. The lawyer and fiduciary may subsequently decide to accelerate or delay some planned payments or distributions in order to improve the tax position of the fiduciary estate or of its beneficiaries. The lawyer's obligation to be diligent includes the duty to advise the fiduciary competently regarding the tax and nontax impact of sales, distributions and other administrative actions. In connection with the administration of an estate or trust it is appropriate for the lawyer and the fiduciary to consider the circumstances of the beneficiaries and to communicate with them regarding the fiduciary estate. See ACTEC Commentary on MRPC 2.1 (Advisor). However, the lawyer and the fiduciary should adhere to their general duties, including the duty to act impartially with respect to the beneficiaries. |
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| Time Constraints Imposed by Client. The lawyer should not agree to the imposition of time limits that may prevent the lawyer from consulting fully with the client or giving a matter the time and attention it should receive. The lawyer should caution the client regarding the risks that arise if a matter is pursued on an abbreviated time schedule that deprives the lawyer of the opportunity fully to fulfill the lawyer's role. A lawyer who agrees to pursue a matter on such a schedule acts properly if adherence to the agreed schedule is reasonable under the circumstances. |
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| Planning for Disability or Death of Lawyer. As stated in Comment (5) to MRPC 1.3, to prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. The obligation to assure that clients are represented on an uninterrupted basis should also extend to lawyers who practice in firms. |
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ANNOTATIONS
See Caveat to Annotations
(Limiting the Scope and Purpose of the Annotations) |
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| See also the Annotations following the ACTEC Commentary on MRPC 1.1. |
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| Cases
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California:
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Radovich v. Locke-Paddon, 41 Cal. Rptr. 2d 573 (Ct. App. 1995). The court held that the beneficiary of an un-executed will must prove facts that “manifest a commitment by the decedent to benefit” the beneficiary in order for the decedent's lawyer to owe any duty to that beneficiary. The appellate court upheld summary judgment for the lawyer in a suit brought by the deceased client's husband. The lawyer had met with the client in June to discuss the preparation of a new will that would increase the provisions to be made for her husband. Although the lawyer knew the client was terminally ill, the lawyer did not send a draft of the new will to the client until October and did not otherwise follow-up on the matter. The client died in December without having executed a new will. The court found that the lawyer did not have a duty, after sending the draft will to the client, to inquire whether she had any questions or want-ed further assistance. |
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Colorado: |
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People v. James, 502 P.2d 1189 (Colo. 1972). This is a disciplinary case in which a lawyer who had previously been disciplined for dereliction of duty to clients was disbarred for “failure to prepare a will for at least eight months after [being] employed to do so” by an aged and infirm client. |
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People v. Van Nocker, 490 P.2d 697 (Colo. 1971). In this disciplinary case the court held that ”crass irresponsibility or callous indifference to a client's affairs is inexcusable under any circumstances.” The lawyer who failed to file tax returns on two occasions for the same client and was not timely in sending a will to the client was suspended for an indefinite period. |
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People v. Woodford, 81 P.3d 370 (Colo. 2003). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1. |
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Connecticut: |
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Krawczyk v. Stingle, 543 A.2d 733 (Conn. 1988). In this malpractice action the attorneys, engaged by the client to prepare documents for the disposition of his estate, were sued for their allegedly negligent failure to provide the documents to the client for execution prior to the client's death. In reversing a trial court judgment against the attorneys in favor of the plaintiffs, the intended beneficiaries under the unexecuted documents, the Supreme Court of Connecticut observed: |
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We conclude that the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer's duty of undivided loyalty to the client. |
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A central dimension of the attorney-client relationship is the attorney's duty of “[e]ntire devotion to the interest of the client.” [Citations omitted.] This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney's delay, the testator did not have an opportunity to execute estate planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney's primary responsibility to ensure that the proposed estate plan effectuates the client'swishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. 543 A.2d at 735. |
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Minnesota: |
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In re Discipline of Helder, 396 N.W.2d 559 (Minn. 1986). In this case the court upheld the indefinite suspension, with right to petition after six months, of a lawyer who failed to communicate with a client who had repeatedly requested changes to the client's will for over six months, then withdrew as counsel, and was guilty of similar dilatory acts in defense of contract claim for another client. |
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In re MacGibbon, 535 N.W.2d 809 (Minn. 1995). An attorney's performance in administering an estate constituted neglect in violation of MRPCs 1.3 and 3.2. The attorney's neglect worsened the delays that are inherent in probate administration. The court noted that the attorney “could have sought and obtained an order determining heirs and adjudicating the final settlement and distribution of the estate.” |
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In re Discipline of O'Brien, 362 N.W. 2d 307 (Minn. 1985). This decision upheld the indefinite suspension, with right to petition for reinstatement after two years, of a lawyer with a chemical dependency, who failed to complete a will and return retainer, and similar actions with respect to two other cases. The lawyer had also practiced with a license suspended for failure to pay registration fees. |
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New York: |
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Matter of Frank T. D'Onofrio, Jr., 618 N.Y.S. 2d 829 (App. Div. 1994). In this action a lawyer was censured for multiple offenses including a failure to timely file an inventory of the estate and a New York state estate tax return as a result of which the estate incurred penalties and interest. |
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Victor v. Goldman, 344 N.Y.S. 2d 672 (Sup. Ct. 1973), aff'd mem., 351 N.Y.S. 2d 956 (App. Div. 1974). The court here held that the absence of priority prevented the decedent's intended beneficiaries from bringing an action against the lawyer who allegedly failed to draw a new will for a client prior to her death. |
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North Dakota: |
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In re Disciplinary Action Against Garcia, 366 N.W. 2d 482 (N.D. 1985). In this case the court upheld a 90 day suspension of a lawyer for misconduct in conversion of a client's funds, neglect, misrepresentation, and deceit. (The lawyer failed to prepare a will or return retainer and lost file for over three years.) The lawyer had a prior disciplinary record. |
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Ohio: |
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Office of Disciplinary Counsel v. Mauk, 512 N.E. 2d 670 (Ohio 1987). A lawyer was suspended indefinitely for unauthorized practice of law, failure to prepare will or communicate with client, followed by lawyer's withdrawal from practice, claiming Agent Orange disorder. |
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Pennsylvania:
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Gregg v. Lindsay, 649 A.2d 935 (Pa. Super. 1994), appeal denied, 661 A.2d 874 (Pa. 1995). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1. |
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Texas: |
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Berry v. Dodson, Nunley & Taylor, 717 S.W.2d 716 (Tex. Ct. App. 1986), writ dismissed by agreement, 729 S.W.2d 690 (Tex. 1987). In this case the lack of privity between the lawyer and the decedent's intended beneficiaries barred them from bringing a negligence action against the lawyer for failing to prepare a new will in accordance with decedent's instructions prior to death. |
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Vermont: |
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Professional Conduct Board Decision No. 25 (1992). In this case the respondent lawyer, who took over as personal representative for an estate in 1982 and failed to take any action to close the estate until after he was required to appear before the probate court following an heir's complaint over the delay in 1989, was given a private admonition for his misconduct. The Professional Conduct Board observed: |
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The Board is concerned with the number of neglect cases which have come to its attention, particularly in probate practice. Given the pressures and the volume of the modern law office, it is easy for some client matters to “slip through the cracks.” It is the responsibility of every lawyer to ensure that client matters are not neglected. The beneficiaries of estates should not have to tolerate inactivity nor have to go to extraordinary lengths just to secure the attention of counsel. |
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Wisconsin: |
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In re Disciplinary Proceedings Against Haberman, 376 N.W.2d 852 (Wis. 1985). An attorney was suspended for two years for neglecting seven estates in which he served as attorney or personal representative, engaging in conflicts of interest in one, and failing to cooperate with the disciplinary board. |
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In re Disciplinary Proceedings Against Meuller, 377 N.W.2d 158 (Wis. 1985). This decision upheld a two year suspension of a lawyer who neglected estate and family matters of clients and who failed to respond to numerous inquiries by disciplinary board. |
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| Ethics Opinions |
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Delaware: |
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Board Case No. 16 (2003). The lawyer here supervised the execution of certain testamentary documents. When the attorney arrived for the execution, the client was incapacitated and unable to speak or recognize the attorney. However, the client's son informed the attorney that both trust documents had been signed by the client earlier in the day when the client was alert and aware of his surroundings. The attorney then witnessed and notarized the client's signatures on each trust. The attorney
replaced a page of the revocable trust with revised page that contained the change requested by the client's son. The attorney failed to conduct an independent evaluation of the client's competence and capacity for undue influence. The attorney also falsely notarized the testator's client's signature on the trusts. The lawyer was privately admonished.
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Board Case No. 30 (2001). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1.
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New Mexico: |
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Op. 2001-1 (2001). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.2.
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