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American College of Trust and Estate Counsel
3415 S. Sepulveda Boulevard
Suite 330
Los Angeles, CA 90034
310-398-1888
310-572-7280 (fax) |
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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT |
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| In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. |
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| The lawyer for a fiduciary is required to comply with MRPC 4.3 in communicating with the beneficiaries of the fiduciary estate, or with the protected person in the case of guardianships and conservatorships, when such persons are not represented by counsel . In dealing with unrepresented beneficiaries or the protected person, the lawyer for the fiduciary may not suggest that he or she is disinterested. As indicated in the ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), the lawyer should inform the beneficiaries of the fiduciary estate regarding various matters, including the fact that the lawyer does not represent them and that they may wish to obtain independent counsel. If the lawyer knows , or reasonably should know, that an unrepresented beneficiary, or another unrepresented person, misunderstands the lawyer's role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding. The lawyer should not permit the beneficiaries to believe that the lawyer is the lawyer for the parties interested in the matter if the lawyer is serving only as lawyer for the fiduciary. |
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| If the lawyer for the fiduciary believes that the interests of an unrepresented person are adverse to the interests of the fiduciary, the lawyer must refrain from giving the unrepresented person any advice. In such cases the lawyer should suggest that the unrepresented person consult with independent counsel. See Comment to MRPC 4.3. |
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| See also the Annotations following the ACTEC Commentary on MRPC 1.2. |
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| Case |
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California: |
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Butler v. State Bar, 721 P.2d 585 (Cal. 1986). The court here observed: “The attorney’s duty to communicate
with a client includes the duty to communicate to persons who reasonably believe they are
clients to the attorney’s knowledge at least to the extent of advising them that they are not clients.” Id. at 589. |
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| Ethics Opinion |
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South Carolina: |
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Op. 93-34 (1993). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 2.3. |
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