Table of contents
Law of Wills
1st Edition
Browne C. Lewis
Table Of Contents
Introduction
Law of Wills

 

 

Browne C. Lewis

Leon and Gloria Plevin Professor of Law and
Director, Center for Health Law & Policy

Cleveland-Marshall College of Law

 

 

 

 

CALI eLangdell Press 2016

About the Author

Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of Health Law & Policy at Cleveland-Marshall College of Law. Prior to joining the faculty at Cleveland-Marshall, Professor Lewis was an associate professor at the University of Detroit Mercy School of Law, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor at Seattle University School of Law and a legal writing instructor at Hamline University School of Law.  Professor Lewis has also taught in the American Bar Association CLEO Summer Institute.

 

Professor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the Hasting Center, and Yale University’s Interdisciplinary Center for Bioethics.  As a Senior Fulbright Specialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel.  Professor Lewis was also a Core Fulbright Scholar at King’s College in London, and a Robert Wood Johnson Public Health Law Scholar in Residence at the Cleveland Public Health Department.

 

Professor Lewis writes in the areas of estate planning, probate and reproductive law.  Her article on human oocyte cryopreservation was recently published in the Tennessee Law Review.  In 2012, New York University Press published Professor Lewis’ book on paternity and artificial insemination. Professor Lewis has recently completed a book on posthumous reproduction for Routledge Press.

Notices

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Preface

Both lay persons and budding lawyers continue to be interested in the area of estates and trusts. While I was writing this book, several celebrities died. Certain deaths really attracted the attention of the public. Facebook and other social media sites were full of dedications to Prince when his death was announced. Robin Williams spent his life making us laugh; the tragic circumstances of his death made us sad. After all of the tears, memorials and speculations ceased, people started searching the Internet for copies of the wills. They were interested in the worth of the various estates and the manner in which those estates would be distributed. They were shocked when Prince died without leaving a will.  They watched legal experts go on television to explain the consequences of Prince’s failure to execute a will.  At times, the media coverage was like watching the introduction to a Wills & Trusts class.  Prince died a single man with no children.  He was survived by several whole-blood and half-blood siblings.  There were even persons coming forth claiming to be his non-marital children.  When cases like this occur, people realize that estate planning and probate law are still interesting and relevant.

The purpose of this casebook is to train the students to think and act like estate planning attorneys.  This book is meant to be used in conjunction with a book on the law of trusts.  The focus of the book is problem-solving and legal application.  The book includes numerous problems, so the students can learn to apply the law they learn from reading the cases.  It also contains collaborative learning exercises to encourage students to engage in group problem-solving.  This book contains less policy than traditional casebooks in the area.  Instead the book contains numerous problems that will enable the students to understand and apply the black letter law. The book is divided into three parts to reflect the main types of issues that students will encounter if they practice elder or estate planning law.  The order of the book mirrors the manner in which estate planning law is practiced in the real world. 

The book starts with an examination of the intestacy system because the majority of people die without executing a will.  Therefore, most of the legal issues an estate planning lawyer faces center around the intestacy system.  Unlike the typical wills casebook, this book provides a detailed discussion of the intestacy system.  A chapter on ethics is included because estate planning attorneys encounter ethical issues that are different from persons practicing in other areas of law. 

The second part of the book includes an exploration of the testacy system.  It is arranged so professors can lead students from the client interview to the will execution.  The first three chapters of this section deal with issues that directly impact the existence of the inheritance system.  It analyzes a person’s ability to control the disposition of his or her property after death.  This serves as the students’ first introduction to the power of the “dead hand”.  These chapters are included to start a public policy discussion about the rights of the dead, the right of heirs, and the necessity of an inheritance system.  I tell my students that, when executing a will, they must think of the ways that it can be contested.  In addition, I tell them that a will can be contested on two fronts-an attack on the testator and an attack on the will.  Two chapters in this part highlight the various ways that someone might question the testator’s ability to execute a valid will.

The final chapters in this unit show the issues that can be raised to dispute the validity of the will.  They also explain the different types of wills that are available. The final part of the book deals with non-probate transfers.  These chapters are included to show students the other devises that people can use to dispose of their property.  That knowledge is important because a significant number of people use these devices to transfer their property.  For example, at the end of the semester, my students have to draft a will based upon a fact pattern that I give them.  I intentionally include non-probate property in order to see if they will attempt to distribute that using the will.

Most of the litigation that occurs in the estates and trusts area center around family disputes.  Consequently, the book devotes a significant amount of time analyzing family dynamics.  To that end, the book discusses the ways in which families are legally formed.

Chapter One
Ethically Representing the Elderly Client
1.1. Introduction

As an estate planning attorney most of the clients you encounter will be elderly or vulnerable in some way. This is the case because the young and the healthy do not usually think about estate planning. Representing elderly clients can be challenging for a variety of reasons. This chapter will examine some of the most common problems an estate planning attorney may face when representing an elderly or disabled client. All lawyers are bound by the rules of professional responsibility. The fact that estate planning attorneys are often considered to be lawyers for the “entire family” may lead to conflicts of interests and other ethical problems.

The law is moderately clear-cut when it comes to the rights and responsibilities of minor children. For example, the law makes it clear that, as a general rule, persons under the age of majority are prevented from entering into transactions that are legally binding. In additional, parents are permitted to speak for their minor and/or permanently disabled children. Nevertheless, it is unclear when the tables should be turned. When should children be allowed to make decisions for their elderly parents? This inquiry presents problems for practicing lawyers. Adult children frequently believe that the moment their parents start having cognitive problems it is legally permissible for them to make decisions for their parents. The baby boomers are aging, so the elderly population will continue to increase. Therefore, attorneys are going to find themselves representing a greater number of elderly clients.

The representation of elderly clients may present unique challenges for estate planning attorneys. Lawyers who represent older clients often fail to follow some of the Model Rules of Professional Conduct. For instance, attorneys typically have discussions with their elderly clients in the presence of their adult children. That makes sense as a practical matter because the adult child is often the one who contacts the attorney, arranges the meeting, and brings the elderly client to the attorney’s office. Yet, that action may cause the attorney to violate Model Rule 1.6 that protects the client’s confidentiality. 

 

1.2. Client Identification

All lawyers have an ethical obligation to make it very clear who they represent. The person who hires the attorney and pays the bills may not be the client. The client is the person whose interests are most at stake in the legal planning or legal problem. The attorney owes the professional duties of competence, diligence, loyalty and confidentiality to the client, not the family. It is crucial to make this distinction in estate planning law cases because family members may be involved in the legal concerns of the older person, and may even have a stake in the case. It is possible, in some situations, for an attorney to represent more than one member of the same family. For instance, that may be a common practice when the attorney is dealing with a married couple.

1.3. Conflict of Interest

Lawyers have an ethical duty to avoid conflicts of interest. This means that, in most situations, a lawyer may only represent one individual. For example, when legal estate planning involves property, such as the family home, in which several people have an interest, these interests are actually or potentially conflicting. Sometimes joint representation is possible, even with a potential conflict of interest, if the client gives informed consent to the representation in writing. However, the attorney should be very careful. This is particularly true when the client is an elderly person executing a will or a testamentary trust because there is a third party who has the potential to benefit from the attorney’s actions. The next case involves a situation where the lawyer represented the testator and a devisee.

 

Chase v. Bowen, 771 So.2d 1181 (Fla. Dist. Ct. App. 2000)

Harris, J.

Naomi Chase sued Lennon Bowen for legal malpractice because he prepared her mother’s revised will omitting Naomi as a beneficiary and instead making major bequests to her mother’s business associates, the Lavenders. Her claim is based on her allegation that Bowen was “her lawyer” as well as the lawyer for her mother and the Lavenders and that Bowen was “mandated ... by the ethical obligations imposed by his profession” to notify her, her mother and the Lavenders of his “irreconcilable conflict of interest” in preparing her mother’s rewrite of her will. The trial court’s summary judgment in favor of Bowen is now before us. We affirm.

Although there is no dispute that Bowen has from time to time during the relevant years represented the daughter, her mother and the Lavenders, the record is not clear exactly what, at the time of the preparation of the mother’s contested amended will and trust, the nature of Bowen’s alleged representation of Naomi was. She alleges only that, “Beginning in 1988 and continuing through 1996, ... Bowen drafted will and trust documents for [Naomi] and redrafted the will and amended the trust agreement of [the mother].”

Naomi apparently believes that Rule 4–1.7, “Conflict of Interest; general rule,” requires that if a lawyer represents a group of people in one matter or in various matters, he must necessarily get the approval of all in order to represent any one of such group in an unrelated matter. We do not so read the rule. If a lawyer prepares the wills of various members of a family, he thereby assumes no obligation to oppose any testator or testatrix from changing such will. Nor is he precluded from assisting such testator or testatrix in the redrafting. There are no allegations that Bowen conspired with the Lavenders to induce the mother to change her will nor is there an allegation that Bowen used his influence to bring about the mother’s change of heart. Naomi simply had no legal right to object to Bowen representing her mother when the mother desired to change her previous will prepared by him.

We believe the supreme court in The Florida Bar v. Moore, 194 So.2d 264, 269 (Fla. 1966), explained the principle behind the rule when it stated:

We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose.

It is our view that a lawyer who prepares a will owes no duty to any previous beneficiary, even a beneficiary he may be representing in another matter, to oppose the testator or testatrix in changing his or her will and, therefore, that assisting in that change is not a conflict of interest.

AFFIRMED.

1.4. Confidentiality

Lawyers have an obligation to keep information and communication between them and their clients confidential. Thus, attorneys cannot share client information with other family members without obtaining approval from the clients.  The amount of information a client is willing to permit his or her attorney to disclose may vary. Some clients may be comfortable having their attorneys share all of the information and having family members participate in the discussions.  On the other hand, some clients may only want their family members to be given general updates.  There are also clients who may demand complete confidentiality.  The attorney needs to establish the limitations of disclosure during the initial consultation. In all cases, one of the attorney’s main objectives should be to keep his or her clients fully informed. In some cases, accomplishing that goal may be complicated by the duty to keep certain information confidential.

Confidentiality issues often occur when an attorney chooses to represent two or more persons with competing interests.  A prime example of this situation is when a husband and wife retain an attorney to execute a will.  Lawyers routinely take these types of cases because many couples may want reciprocal wills.  There are several reasons why this type of dual representation can lead to problems.  First, one party may have a secret that is relevant to the distribution of the estates.  For instance, if a husband is having an affair, the wife may not be willing to make him the sole beneficiary of her estate.  The lawyer usually becomes aware of the other woman when the man seeks to include her in his testamentary plans by secretly leaving her a portion of his estate.  Second, one or both of the clients may be in a second marriage.  This is relevant because there may be children who are not children of the second marriage.  Consequently, one or both of the clients may try to get the attorney to draft a testamentary document that leaves a portion of the estate to a child without the stepparent’s knowledge.  Finally, for whatever reason, one of the parties may contact the attorney to have his or her will modified in a way that is detrimental to the other party.  Since the purpose of reciprocal or mutual wills is to make sure that each person inherits the other person’s estate, the modification may put the attorney in the position of acting in a way that is not in the best interests of one of his or her clients.

A. v. B., 726 A2d 924 (N.J. 1999) 

Pollock, J.

This appeal presents the issue whether a law firm may disclose confidential information of one co-client to another co-client. Specifically, in this paternity action, the mother’s former law firm, which contemporaneously represented the father and his wife in planning their estates, seeks to disclose to the wife the existence of the father’s illegitimate child.

A law firm, Hill Wallack (described variously as “the law firm” or “the firm”), jointly represented the husband and wife in drafting wills in which they devised their respective estates to each other. The devises created the possibility that the other spouse’s issue, whether legitimate or illegitimate, ultimately would acquire the decedent’s property.

Unbeknown to Hill Wallack and the wife, the husband recently had fathered an illegitimate child. Before the execution of the wills, the child’s mother retained Hill Wallack to institute this paternity action against the husband. Because of a clerical error, the firm’s computer check did not reveal the conflict of interest inherent in its representation of the mother against the husband. On learning of the conflict, the firm withdrew from representation of the mother in the paternity action. Now, the firm wishes to disclose to the wife the fact that the husband has an illegitimate child. To prevent Hill Wallack from making that disclosure, the husband joined the firm as a third-party defendant in the paternity action.

In the Family Part, the husband, represented by new counsel, Fox, Rothschild, O’Brien & Frankel (“Fox Rothschild”), requested restraints against Hill Wallack to prevent the firm from disclosing to his wife the existence of the child. The Family Part denied the requested restraints. The Appellate Division reversed and remanded “for the entry of an order imposing preliminary restraints and for further consideration.”

Hill Wallack then filed motions in this Court seeking leave to appeal, to present oral argument, and to accelerate the appeal. Pursuant to Rule 2:8–3(a), we grant the motion for leave to appeal, accelerate the appeal, reverse the judgment of the Appellate Division and remand the matter to the Family Part. Hill Wallack’s motion for oral argument is denied.

I.

Although the record is both informal and attenuated, the parties agree substantially on the relevant facts. Because the Family Part has sealed the record, we refer to the parties without identifying them by their proper names. So viewed, the record supports the following factual statement.

In October 1997, the husband and wife retained Hill Wallack, a firm of approximately sixty lawyers, to assist them with planning their estates. On the commencement of the joint representation, the husband and wife each signed a letter captioned “Waiver of Conflict of Interest.” In explaining the possible conflicts of interest, the letter recited that the effect of a testamentary transfer by one spouse to the other would permit the transferee to dispose of the property as he or she desired. The firm’s letter also explained that information provided by one spouse could become available to the other. Although the letter did not contain an express waiver of the confidentiality of any such information, each spouse consented to and waived any conflicts arising from the firm’s joint representation.

Unfortunately, the clerk who opened the firm’s estate planning file misspelled the clients’ surname. The misspelled name was entered in the computer program that the firm uses to discover possible conflicts of interest. The firm then prepared reciprocal wills and related documents with the names of the husband and wife correctly spelled.

In January 1998, before the husband and wife executed the estate planning documents, the mother coincidentally retained Hill Wallack to pursue a paternity claim against the husband. This time, when making its computer search for conflicts of interest, Hill Wallack spelled the husband’s name correctly. Accordingly, the computer search did not reveal the existence of the firm’s joint representation of the husband and wife. As a result, the estate planning department did not know that the family law department had instituted a paternity action for the mother. Similarly, the family law department did not know that the estate planning department was preparing estate plans for the husband and wife.

A lawyer from the firm’s family law department wrote to the husband about the mother’s paternity claim. The husband neither objected to the firm’s representation of the mother nor alerted the firm to the conflict of interest. Instead, he retained Fox Rothschild to represent him in the paternity action. After initially denying paternity, he agreed to voluntary DNA testing, which revealed that he is the father. Negotiations over child support failed, and the mother instituted the present action.

After the mother filed the paternity action, the husband and wife executed their wills at the Hill Wallack office. The parties agree that in their wills, the husband and wife leave their respective residuary estates to each other. If the other spouse does not survive, the contingent beneficiaries are the testator’s issue. The wife’s will leaves her residuary estate to her husband, creating the possibility that her property ultimately may pass to his issue. Under N.J.S.A. 3B:1-3, the term “issue” includes both legitimate and illegitimate children. When the wife executed her will, therefore, she did not know that the husband’s illegitimate child ultimately may inherit her property.

The conflict of interest surfaced when Fox Rothschild, in response to Hill Wallack’s request for disclosure of the husband’s assets, informed the firm that it already possessed the requested information. Hill Wallack promptly informed the mother that it unknowingly was representing both the husband and the wife in an unrelated matter.

Hill Wallack immediately withdrew from representing the mother in the paternity action. It also instructed the estate planning department not to disclose any information about the husband’s assets to the member of the firm who had been representing the mother. The firm then wrote to the husband stating that it believed it had an ethical obligation to disclose to the wife the existence, but not the identity, of his illegitimate child. Additionally, the firm stated that it was obligated to inform the wife “that her current estate plan may devise a portion of her assets through her spouse to that child.” The firm suggested that the husband so inform his wife and stated that if he did not do so, it would. Because of the restraints imposed by the Appellate Division, however, the firm has not disclosed the information to the wife.

II.

This appeal concerns the conflict between two fundamental obligations of lawyers: the duty of confidentiality, Rules of Professional Conduct (RPC) 1.6(a), and the duty to inform clients of material facts, RPC 1.4(b).  The conflict arises from a law firm’s joint representation of two clients whose interests initially were, but no longer are, compatible.

Crucial to the attorney-client relationship is the attorney’s obligation not to reveal confidential information learned in the course of representation. Thus, RPC 1.6(a) states that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” Generally, “the principle of attorney-client confidentiality imposes a sacred trust on the attorney not to disclose the client’s confidential communication.” State v. Land, 73 N.J. 24, 30, 372 A.3d (1977).

A lawyer’s obligation to communicate to one client all information needed to make an informed decision qualifies the firm’s duty to maintain the confidentiality of a co-client’s information. RPC 1.4(b), which reflects a lawyer’s duty to keep clients informed, requires that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” See also Gantam v. De Luca, 215 N.J. Super. 388, 397, 521 A.2d 1343 (App.Div.1987)(stating that attorney has continuing duty “to inform his client promptly of any information important to him”); Passanante v. Yormark, 138 N.J​.Super. 233, 238, 350 A.2d 497 (App.Div.1975) (“[An attorney’s] duty includes the obligation of informing his client promptly of any known information important to him.”). In limited situations, moreover, an attorney is permitted or required to disclose confidential information. Hill Wallack argues that RPC 1.6 mandates, or at least permits, the firm to disclose to the wife the existence of the husband’s illegitimate child. RPC 1.6(b) requires that a lawyer disclose “information relating to representation of a client” to the proper authorities if the lawyer “reasonably believes” that such disclosure is necessary to prevent the client “from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another.” RPC 1.6(b)(1). Despite Hill Wallack’s claim that RPC 1.6(b) applies, the facts do not justify mandatory disclosure. The possible inheritance of the wife’s estate by the husband’s illegitimate child is too remote to constitute “substantial injury to the financial interest or property of another” within the meaning of RPC 1.6(b).

By comparison, in limited circumstances RPC 1.6(c) permits a lawyer to disclose a confidential communication. RPC 1.6(c) permits, but does not require, a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary “to rectify the consequences of a client’s criminal, illegal or fraudulent act in furtherance of which the lawyer’s services had been used.” RPC 1.6(c)(1). Although RPC 1.6(c) does not define a “fraudulent act,” the term takes on meaning from our construction of the word “fraud,” found in the analogous “crime or fraud” exception to the attorney-client privilege. See N.J.R.E. 504(a)(excepting from attorney-client privilege “a communication in the course of legal service sought or obtained in the aid of the commission of a crime or fraud”); Kevin H. Michels, New Jersey Attorney Ethics § 15:3–3 at 280 (1998) (“While the RPCs no longer incorporate the attorney-client privilege into the definition of confidential information, prior constructions of the fraud exception may be relevant in interpreting the exceptions to confidentiality contained in RPC 1.6(b) and (c) ....”) (internal citation omitted). When construing the “crime or fraud” exception to the attorney-client privilege, “our courts have generally given the term ‘fraud’ an expansive reading.” Fellerman v. Bradley, 99 N.J. 493, 503-04, 493 A.2d 1239 (1985).

We likewise construe broadly the term “fraudulent act” within the meaning of RPC 1.6(c). So construed, the husband’s deliberate omission of the existence of his illegitimate child constitutes a fraud on his wife. When discussing their respective estates with the firm, the husband and wife reasonably could expect that each would disclose information material to the distribution of their estates, including the existence of children who are contingent residuary beneficiaries. The husband breached that duty. Under the reciprocal wills, the existence of the husband’s illegitimate child could affect the distribution of the wife’s estate, if she predeceased him. Additionally, the husband’s child support payments and other financial responsibilities owed to the illegitimate child could deplete that part of his estate that otherwise would pass to his wife.

From another perspective, it would be “fundamentally unfair” for the husband to reap the “joint planning advantages of access to information and certainty of outcome,” while denying those same advantages to his wife. Teresa S. Collett, Disclosure, Discretion, or Deception: The Estate Planner’s Ethical Dilemma from a Unilateral Confidence, 28 Real Prop. Prob. Tr. J. 683, 743 (1994). In effect, the husband has used the law firm’s services to defraud his wife in the preparation of her estate.

The New Jersey RPCs are based substantially on the American Bar Association Model Rules of Professional Conduct (“the Model Rules”). RPC 1.6, however, exceeds the Model Rules in authorizing the disclosure of confidential information. A brief review of the history of the Model Rules and of RPC 1.6 confirms New Jersey’s more expansive commitment to the disclosure of confidential client information.

In 1977, the American Bar Association appointed a Commission on Evaluation of Professional Standards, chaired by the late Robert J. Kutak. The Commission, generally known as the “Kutak Commission,” originally proposed a rule that permitted a lawyer to disclose confidential information in circumstances comparable to those permitted by RPC 1.6, The House of Delegates of the American Bar Association, however, rejected the Kutak Commission’s recommendation. As adopted by the American Bar Association, Model Rule 1.6(b) permits a lawyer to reveal confidential information only “to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.” Unlike RPC 1.6, Model Rule 1.6 does not except information relating to the commission of a fraudulent act or that relating to a client’s act that is likely to result in substantial financial injury. In no situation, moreover, does Model Rule 1.6 require disclosure. Thus, the Model Rules provide for narrower disclosure than that authorized by RPC 1.6.

In 1982, this Court appointed a committee to consider the Model Rules. The committee, chaired by the Honorable Dickinson R. Debevoise, became known as the “Debevoise Committee.” It determined that the original provisions proposed by the Kutak Commission more closely reflected the existing ethics rules in New Jersey. Thus, the Committee concluded that Model Rule 1.6 would “narrow radically the circumstances in which New Jersey attorneys either may or must disclose the information of their clients’ criminal or fraudulent behavior.” Report of the New Jersey Supreme Court Committee on the Model Rules of Professional Conduct (1983), reprinted in Michels, supra, Appendix D at 1043. When adopting the RPC s, this Court substantially followed the recommendation of the Debevoise Committee. Described as an “openly-radical experiment,” Geoffrey C. Hazard, Jr. & W. William Hodes, 2 The Law of Lawyering § AP4:104 (1998), RPC 1.6  “contained the most far-reaching disclosure requirements of any attorney code of conduct in the country,” Leslie C. Levin, Testing the Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev. 81, 92 (1994). 

Under RPC 1.6, the facts support disclosure to the wife. The law firm did not learn of the husband’s illegitimate child in a confidential communication from him. Indeed, he concealed that information from both his wife and the firm. The law firm learned about the husband’s child through its representation of the mother in her paternity action against the husband. Accordingly, the husband’s expectation of nondisclosure of the information may be less than if he had communicated the information to the firm in confidence.

In addition, the husband and wife signed letters captioned “Waiver of Conflict of Interest.” These letters acknowledge that information provided by one client could become available to the other. The letters, however, stop short of explicitly authorizing the firm to disclose one spouse’s confidential information to the other. Even in the absence of any such explicit authorization, the spirit of the letters supports the firm’s decision to disclose to the wife the existence of the husband’s illegitimate child.

Neither our research nor that of counsel has revealed a dispositive judicial decision from this or any other jurisdiction on the issue of disclosure of confidential information about one client to a co-client. Persuasive secondary authority, however, supports the conclusion that the firm may disclose to the wife the existence of the husband’s child.

The forthcoming Restatement (Third) of The Law Governing Lawyers § 112 comment l (Proposed Final Draft No. 1, 1996) (“the Restatement ”) suggests, for example, that if the attorney and the co-clients have reached a prior, explicit agreement concerning the sharing of confidential information, that agreement controls whether the attorney should disclose the confidential information of one co-client to another. Ibid. (“Co-clients ... may explicitly agree to share information” and “can also explicitly agree that the lawyer is not to share certain information ... with one or more other co-clients. A lawyer must honor such agreements.”); see also Report of the ABA Special Study Committee on Professional Responsibility: Comments and Recommendations on the Lawyer’s Duties in Representing Husband and Wife, 28 Real Prop. Prob. Tr. J. 765, 787 (1994)(“Although legally and ethically there is no need for a prior discussion and agreement with the couple about the mode of representation, discussion and agreement are the better practice. The agreement may cover ... the duty to keep or disclose confidences.”); American College of Trust and Estate Counsel, ACTEC Commentaries on the Model Rules of Professional Conduct 65–66 (2d ed. 1995) (“When the lawyer is first consulted by the multiple potential clients the lawyer should review with them the terms upon which the lawyer will undertake the representation, including the extent to which information will be shared among them.”).

As the preceding authorities suggest, an attorney, on commencing joint representation of co-clients, should agree explicitly with the clients on the sharing of confidential information. In such a “disclosure agreement,” the co-clients can agree that any confidential information concerning one co-client, whether obtained from a co-client himself or herself or from another source, will be shared with the other co-client. Similarly, the co-clients can agree that unilateral confidences or other confidential information will be kept confidential by the attorney. Such a prior agreement will clarify the expectations of the clients and the lawyer and diminish the need for future litigation.

In the absence of an agreement to share confidential information with co-clients, the Restatement reposes the resolution of the lawyer’s competing duties within the lawyer’s discretion:

[T]he lawyer, after consideration of all relevant circumstances, has the ... discretion to inform the affected co-client of the specific communication if, in the lawyer’s reasonable judgment, the immediacy and magnitude of the risk to the affected co-client outweigh the interest of the communicating client in continued secrecy.

[Restatement (Third) of The Law Governing Lawyers, supra, § 112 comment l.]

Additionally, the Restatement advises that the lawyer, when withdrawing from representation of the co-clients, may inform the affected co-client that the attorney has learned of information adversely affecting that client’s interests that the communicating co-client refuses to permit the lawyer to disclose. Ibid.

In the context of estate planning, the Restatement also suggests that a lawyer’s disclosure of confidential information communicated by one spouse is appropriate only if the other spouse’s failure to learn of the information would be materially detrimental to that other spouse or frustrate the spouse’s intended testamentary arrangement. (citations omitted).

Because Hill Wallack wishes to make the disclosure, we need not reach the issue whether the lawyer’s obligation to disclose is discretionary or mandatory. In conclusion, Hill Wallack may inform the wife of the existence of the husband’s illegitimate child.

Finally, authorizing the disclosure of the existence, but not the identity, of the child will not contravene N.J.S.A. 9:17-42, which provides:

All papers and records and any information pertaining to an action or proceeding held under [the New Jersey Parentage Act] which may reveal the identity of any party in an action, other than the final judgment or the birth certificate, whether part of the permanent record of the court or of a file with the State registrar of vital statistics or elsewhere, are confidential and are subject to inspection only upon consent of the court and all parties to the action who are still living, or in exceptional cases only upon an order of the court for compelling reason clearly and convincingly shown.

The law firm learned of the husband’s paternity of the child through the mother’s disclosure before the institution of the paternity suit. It does not seek to disclose the identity of the mother or the child. Given the wife’s need for the information and the law firm’s right to disclose it, the disclosure of the child’s existence to the wife constitutes an exceptional case with “compelling reason clearly and convincingly shown.”

The judgment of the Appellate Division is reversed and the matter is remanded to the Family Part.

Notes, Problems, and Questions

1. The secret child problem is more common than you would think. What are some steps that the attorney can take during the initial consultation to ensure that he or she is not faced with the situation involved in A. v. B.?

2. Why did the attorney for the firm argue that the state rules of professional conduct required the firm to tell the wife about her husband’s non-marital child?  Why did the court reject that argument?

3. Why did the court hold that the firm was permitted to disclose the existence of the child under the state rules of professional conduct?

4. If the court had applied the ABA Model Rules of Professional Conduct instead of the state rules, might the outcome of the case have been the same?  Why? Why not?

5. What safeguards should an attorney representing co-clients take with regards to confidential information?

6. In a jurisdiction that adopts the Restatement (Third) of The Law Governing Lawyers, what would be the possible outcome of the case?

7. Wallace has been retained by Harold and Wanda to prepare wills pursuant to an arrangement under which each spouse agrees to leave most of his or her property to the other. Shortly after the wills are executed, Harold (unknown to Wanda) asks Wallace to prepare an inter vivos trust for Jeremy, the man that Harold has been having an affair with for the last ten years.  Harold has kept the fact that he is bisexual from Wanda for many years.  Prior to the execution of the wills, Harold did not tell Wallace about Jeremy.  Harold states that Wanda would be distraught at learning of Harold’s infidelity and of Harold’s silence and that disclosure of the information could destroy their marriage.  As a result, Harold directs Wallace not to inform Wanda.  The inter vivos trust that Harold purposes to create would not materially affect Wanda’s own estate plan or her expected receipt of property under Harold’s will, because Harold proposes to use property designated in Harold’s will for a favorite charity to fund the proposed trust. Under the ABA Model Rules, is Wallace required to disclose the affair to Wanda?  Is Wallace permitted to disclose the affair?  What result under the Restatement? What result under the rules of professional conduct in your state?

8. Same facts as Problem 7, except that Harold’s proposed inter vivos trust would significantly deplete Harold’s estate to Wanda’s material detriment and in frustration of the spouses’ intended testamentary arrangements.  Harold wants to create the trust because Jeremy is HIV positive and cannot work. Under the ABA Model Rules, is Wallace required to disclose the affair to Wanda?  Is Wallace permitted to disclose the affair?  What result under the Restatement? What result under the rules of professional conduct in your state?

9. The American College of Trust and Estate Counsel (ACTEC) favors a discretionary rule. It recommends that the “lawyer should have a reasonable degree of discretion in determining how to respond to any particular case.” The ACTEC suggests that the lawyer first attempt to convince the client to inform the co-client.  When urging the client to disclose the information, the lawyer should remind the client of the implicit understanding that all information will be shared by both clients.  The lawyer also should explain to the client the potential legal consequences of non-disclosure, including invalidation of the wills.  Furthermore, the lawyer may mention that failure to communicate the information could subject the lawyer to a malpractice claim or disciplinary action.  The ACTEC reasons that if unsuccessful in persuading the client to disclose the information, the lawyer should consider several factors in deciding whether to reveal the confidential information to the co-client, including: (1) duties of impartiality and loyalty to the clients; (2) any express or implied agreement among the lawyer and the joint clients that information communicated by either client to the lawyer regarding the subject of the representation would be shared with the other client; (3) the reasonable expectations of the clients; and (4) the nature of the confidence and the harm that may result if the confidence is, or is not, disclosed.

10. Lawyer has represented Percy and June, his wife, for many years in a range of personal matters, including estate planning.  Percy and June have substantial individual assets, and they also own substantial jointly-held property.  Recently, Lawyer prepared new updated wills that Percy and June signed.  Like their previous wills, their new wills primarily benefit the survivor of them for his or her life, with beneficial disposition at the death of the survivor being made equally to their children.  Several months after the execution of the new wills, Percy confers separately with Lawyer.  Percy reveals to Lawyer that he has just executed a codicil prepared by another law firm that makes substantial beneficial disposition to a woman with whom Percy has been having an extra-marital relationship. Under the ABA Model Rules, is Lawyer required to disclose information about the codicil to June?  Is Lawyer permitted to disclose the affair?  What result under the Restatement? What result under the rules of professional conduct in your state?

American Bar Association Model Rule 1.6 Confidentiality of Information

1. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

2. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

  • to prevent reasonably certain death or substantial bodily harm;
  • to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
  • to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
  • to secure legal advice about the lawyer’s compliance with these Rules;
  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer’s representation of the client;
  • to comply with other law or a court order; or
  • to detect and resolve conflicts of interests arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

3. lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

1.5. Competency

Lawyers have special ethical responsibilities in working with clients whose capacity for making decisions may be diminished.  Lawyers must treat the impaired person with the same attention and respect to which every client is entitled.  This means meeting privately with the client and giving him or her enough time to explain what he or she wants.  If the client is unable to make decisions due to diminished capacity, and is at risk of serious physical, financial, or other harm, the ethics rules require attorneys to consider actions to protect that client.  Nevertheless, the attorney has to be cautious when taking steps to protect the interests of a diminished client.

American Bar Association Model Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting individuals or entities that have the ability to take action to protect the client, and in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

*****************

(d) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the client’s interests.

In re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010)

PER CURIAM.

A hearing panel of the Disciplinary Board recommended attorney Gerald A. Kuhn be suspended from the practice of law for ninety days and pay the costs of the disciplinary proceeding in the amount of $2,654.07 for violating N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and 1.14, Client With Limited Capacity. Counsel for the Disciplinary Board urges this Court to accept the hearing panel’s recommendation. Kuhn objects to the hearing panel’s conclusions, arguing they are not supported by clear and convincing evidence. Determining there is clear and convincing evidence Kuhn violated N.D.R. Prof. Conduct 1.14, we direct that Kuhn be suspended from the practice of law for ninety days and that he pay the costs of the disciplinary proceeding in the amount of $2,654.07.

I.

Kuhn has been licensed to practice law in the courts of North Dakota since July 8, 1974. Shortly after he started his practice, he began to do tax work for Jake Leno. In 2005, Kuhn wrote a will for Jake Leno. In that will, Jake Leno devised his condominium to his daughter, Kathleen McKinley.

In 2006, McKinley filed a petition for appointment of a guardian/conservator for Jake Leno. The district court appointed Guardian and Protective Services, Inc. (“GAPS”) as Jake Leno’s temporary guardian/conservator. The district court also appointed a physician, guardian ad litem, and visitor to meet with Jake Leno and report back to the district court.

The court-appointed physician reported Jake Leno suffered from “Parkinson’s disease with concurrent adult onset diabetes” and “some short term memory loss,” and indicated Jake Leno needed full-time care. The guardian ad litem reported she “firmly believe[d] that the proposed ward needs a guardian.” Jake Leno’s former home health care provider informed the guardian ad litem Jake Leno “has Parkinson’s disease and dementia of the Alzheimer’s type.” The court-appointed visitor also recommended Jake Leno needed a guardian/conservator.

At the hearing on the guardianship/conservatorship petition, Kuhn represented Jake Leno’s sons, Ronald Leno and Randy Leno. Ronald Leno and Randy Leno testified they were willing to serve as Jake Leno’s guardians/conservators. Jake Leno testified he did not think he needed a guardian/conservator. The district court found Jake Leno “has a current medical diagnosis of Parkinson’s disease with adult onset diabetes and exhibits short term memory loss.” The district court concluded Jake Leno was incapacitated and appointed GAPS full guardian and conservator, with full control over his place of residence, legal matters, financial matters, and medical treatment.

In 2007, an unidentified person contacted Kuhn’s office and told Kuhn’s receptionist Jake Leno wanted his will changed. Kuhn testified at the disciplinary hearing that he thought an employee of GAPS had contacted his office to change the will. However, Kuhn acknowledged he did not contact GAPS to verify whether one of its employees had called his office. Kuhn learned later one of Jake Leno’s caregivers had contacted his office. After speaking with Jake Leno, Kuhn drafted a new will that gave all of Jake Leno’s property, including the condominium, to the three children equally, instead of devising the condominium solely to McKinley.

Kuhn testified that at the time he wrote the will he “knew [Jake Leno] had been declared incompetent” and “there was allegations that he had dementia of the Alzheimer’s type.” Kuhn took two of his employees to Jake Leno’s apartment to act as witnesses as Jake Leno executed the new will. Kuhn testified at the disciplinary hearing regarding his state of mind:

I was a little uneasy because he was in-under a judicial order that said he was incompetent. So I questioned him, I questioned his caregiver to ask her how he’s doing. And she said, “Oh, he’s fine. He knows what’s going on, and, Jake, he knows.” And I questioned him in front of the witnesses-in front of the two witnesses about the will. Told him exactly what he was doing. And said, “Now, are you sure this is what you want to do? This is what’s going to happen.” And he said, “Yes.” So, I mean, my impression that day was that he was fine.

A year later, McKinley sent a letter to Kuhn protesting his actions regarding Jake Leno’s new will. Kuhn, as preparer of the will, subsequently filed a petition seeking an order determining the validity of the will. The district court dismissed the petition, stating, “[T]he guardianship/conservatorship created for the Ward Jake Leno, granted to the appointed guardian/conservator full authority for all legal matters on behalf of Jake Leno, effective as of the date of appointment. The attempted execution of a Will thereafter by the Ward Jake Leno is therefore without legal authority and therefore invalid.” Kuhn did not appeal the district court’s order.

In 2009, counsel for the Disciplinary Board filed a petition alleging Kuhn had violated N.D.R. Prof. Conduct 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer; 1.4(a)(2) and (b), Communication; 1.7(a) and (c), Conflict of Interest; and 1.14, Client With Limited Capacity, by his actions regarding Jake Leno’s guardianship/conservatorship hearing and second will. The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof. Conduct 1.7 (a) and (c) which provide that a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client, and a lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer’s responsibilities to another client, in that Kuhn represented Ronald Leno and Randy Leno at the guardianship/conservatorship hearing and thereafter drafted a new will for Jake Leno, purportedly on Jake Leno’s behalf, which favored the interests of Ronald Leno and Randy Leno.

The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof. Conduct 1.14, Comment 5

which provides that if the client has an appointed representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client, in that Kuhn prepared a new will for Jake Leno without having first looked to Guardian & Protective Services, Inc., as the court-appointed guardian and conservator of Jake Leno, for decision-making authority to make a new will.

The hearing panel found “Kuhn’s testimony that he believed that GAPS was aware of Jake Leno’s desire to make a new will is not credible.” The hearing panel concluded Kuhn had violated N.D.R. Prof. Conduct (a), Conflict of Interest, because he:

Represented Ronald and Randy, who were seeking appointment as guardians/conservators over Kuhn’s long-time client, Jake, and then drafted a new will for Jake, which favored the interests of Ronald and Randy, after Kuhn had represented Ronald and Randy at the guardianship/conservatorship hearing and after Jake had been judicially declared incapacitated.

The hearing panel also concluded Kuhn violated N.D.R. Prof. Conduct 1.14, Client With Limited Capacity, when he “prepared a new will for Jake without communicating with or securing decision-making authority from GAPS, the court-appointed guardian and conservator with full authority over Jake’s legal matters.” In recommending discipline, the hearing panel considered the following aggravating factors:

Standard 9.22(a), N.D. Stds. Imposing Lawyer Sanctions, a prior disciplinary offense;

Standard 9.22(c), a pattern of misconduct;

Standard 9.22(h), vulnerability of the victim, and

Standard 9.22(I), substantial experience in the practice of law.

The hearing panel considered as a mitigating factor Standard 9.32(e), “full and free disclosure to disciplinary board or cooperative attitude toward proceedings.” N.D. Stds. Imposing Lawyer Sanctions 9.32(e). The hearing panel considered suspension the most appropriate sanction under N.D. Stds. Imposing Lawyer Sanctions 4.32 and 8.2 and recommended Kuhn be suspended from the practice of law for ninety days and pay the costs of the disciplinary proceeding in the amount of $2,654.07.

Kuhn subsequently filed an objection to the hearing panel’s report. Kuhn objected to the hearing panel’s finding that his testimony was not credible. He also objected to the hearing panel’s conclusions that he had violated N.D.R. Prof. Conduct 1.7(a) and 1.14. 

II.

This Court reviews disciplinary proceedings de novo on the record. Disciplinary Board v. Askew, 2010 ND 7, 776 N.W.2d 816 (citing Disciplinary Board v. Light, 2009 ND 83, 765 N.W.2d 536). Counsel for the Disciplinary Board must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction. Id. “We give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the Board.” Id.

A.

Rule 1.7(a) of the North Dakota Rules of Professional Conduct states, “A lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.” The hearing panel concluded Kuhn violated the rule when he:

Represented Ronald and Randy, who were seeking appointment as guardians/conservators over Kuhn’s long-time client, Jake, and then drafted a new will for Jake, which favored the interests of Ronald and Randy, after Kuhn had represented Ronald and Randy at the guardianship/conservatorship hearing and after Jake had been judicially declared incapacitated.

Kuhn argues the hearing panel’s conclusion is not supported by clear and convincing evidence. He asserts no conflict existed because he did not represent Jake Leno at the time of the guardianship/conservatorship hearing, and he did not represent Ronald Leno and Randy Leno at the time Jake Leno made his second will. Counsel for the Disciplinary Board did not allege Kuhn had violated N.D.R. Prof. Conduct 1.9, Duties to Former Client. Rather, counsel for the Disciplinary Board argues clear and convincing evidence shows Kuhn’s alternating representation of Jake Leno and his sons created a conflict of interest under N.D.R. Prof. Conduct 1.7(a). 

The record does not include clear and convincing evidence Jake Leno was Kuhn’s client at the time of the guardianship/conservatorship hearing. The record indicates Kuhn did tax work for Jake Leno multiple times since 1974 and drafted a will for him in 2005. The record does not explain the course of dealing between Kuhn and Jake Leno; whether Jake Leno hired Kuhn on retainer or whether they entered into a new contract each time Jake Leno requested Kuhn perform a task. Without such an explanation, Jake Leno’s status as a current or former client of Kuhn is unclear. See Restatement (Third) of the Law Governing Lawyers § 31(2)(e) (2000) (explaining the relationship between a lawyer and a client “ends as provided by contract or because the lawyer has completed the contemplated services”). The record also does not include an explanation of Jake Leno’s understanding of his professional relationship with Kuhn. See Restatement (Third) of the Law Governing Lawyers §18(2) (2000)(stating a contract between a lawyer and a client should be construed “as a reasonable person in the circumstances of the client would have construed it”). In examining the allegations in the petition for discipline and the findings of the hearing panel we are uncertain as to the client relationships that existed at the times the hearing panel found the violations to have occurred. Rule 1.7(a) prohibits a lawyer from representing a client if it will adversely affect the lawyer’s responsibilities to another client. The rule does not prohibit all alternating representation but appears to assume a client relationship at the time of the violation. Without clear and convincing evidence Jake Leno was Kuhn’s client at the time of the guardianship/conservatorship hearing, the hearing panel’s conclusion that Kuhn violated N.D.R. Prof. Conduct 1.7 (a), Conflict of Interest, is not supported by the record.

B.

Rule 1.14 of the North Dakota Rules of Professional Conduct states, in pertinent part:

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is limited, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has limited capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and the client cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Comment 5 of the rule states, “If the client has an appointed representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client. The lawyer should be cognizant of the extent of the powers and duties conferred upon the client’s appointed representative.” N.D.R. Prof. Conduct 1.14, comment 5. The hearing panel concluded Kuhn violated Rule 1.14 when he “prepared a new will for Jake without communicating with or securing decision-making authority from GAPS, the court-appointed guardian and conservator with full authority over Jake’s legal matters.”

Kuhn argues he did not violate Rule 1.14 because he was abiding by his client’s wishes. Kuhn cites Comment 3 of Rule 1.14:

The fact that a client is a minor or has limited capacity does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has an appointed representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. Appointed representatives include guardians ad litem, conservators, guardians, individuals appointed in a durable power of attorney or in an advanced health care directive.

Kuhn argues he was fulfilling his duty to give Jake Leno attention and respect when he drafted the new will.

Kuhn concedes he had a responsibility to communicate with Jake Leno’s guardian/conservator, but Kuhn testified he believed he was acting with the consent of GAPS. The hearing panel found this testimony was not credible. “[W]e defer to the hearing panel’s findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness’s demeanor and hear the witness testify.” Askew, 2010 ND 7, 9, 776 N.W.2d 816 (citing Disciplinary Board v. Johnson, 2007 ND 203, 743 N.W.2d 117).

Counsel for the Disciplinary Board cites North Dakota Ethics Opinion No. 09-03. In that opinion, the requesting attorney represented a criminal defendant who had been declared incapacitated and had a guardian with full authority over legal matters. N.D. Ethics Opinion 09-03 at 1. The requesting attorney asked the ethics committee of the State Bar Association of North Dakota whether he was obligated to communicate with the guardian against his client’s wishes, and whether he was obligated to communicate with the guardian regarding entry of pleas, waiver of jury trial, or whether his client would testify. Id. The ethics committee cited favorably the Massachusetts Supreme Court’s opinion in Guardianship of Hocker, 439 Mass. 709, 791 N.E.2d 302 (2003). Id. at 5-6. The Massachusetts Supreme Court stated:

When a person is adjudicated incompetent ... the necessary effect ... is that the ward is in law ... incapable of taking care of himself, as to all the world. The permanent guardian stands in the place of the ward in making decisions about the ward’s well-being, and the guardian is held to high standards of fidelity in exercising this authority for the ward’s benefit. To be sure, an adjudication of incompetency ... does not obviate the need for a guardian or judge to consult a ward’s feelings or opinions on a matter concerning his care. It does not make the ward any less worthy of dignity or respect in the eyes of the law than a competent person. It does not deprive the ward of fundamental liberty interests. But the rights and interests of one adjudicated to be incompetent must of necessity and for the benefit or advantage of the ward, often be vindicated in a manner different from that of the mentally competent.

Id. (quoting Hocker, 791 N.E.2d at 307) (internal quotes and citations omitted). The ethics committee concluded the requesting attorney was ethically obligated to communicate with his client’s guardian, but that it was a legal question beyond the committee’s purview whether the guardian or the client had the authority to make decisions regarding a plea, waiver of jury trial, or whether the client would testify. Id. at 8.

The record shows Kuhn knew Jake Leno had been declared incapacitated and GAPS had been named his guardian with full authority over his legal matters. Kuhn was present at the guardianship hearing. He reviewed all the documents indicating Jake Leno suffered from Parkinson’s disease and short-term memory loss. He concedes it was his responsibility to communicate with Jake Leno’s guardian. He failed to meet this responsibility, however. Kuhn’s understandable desire to give his client attention and respect does not overcome Jake Leno’s incapacity to make legal decisions on his own behalf. Kuhn did not look to Jake Leno’s appointed representative, as required by N.D.R. Prof. Conduct 1.14, comment 5. Kuhn persisted in executing a will that was invalid because of Jake Leno’s incapacity. Furthermore, we do not ignore the fact the second will drafted by Kuhn benefitted Ronald Leno and Randy Leno, Kuhn’s clients at the guardianship/conservatorship hearing. Clear and convincing evidence indicates Kuhn violated N.D.R. Prof. Conduct 1.14. 

The hearing panel considered suspension to be the appropriate sanction under Standard 4.32 of the North Dakota Standards for Imposing Lawyer Sanctions. Standard 4.32 states, “Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” In light of our determination that clear and convincing evidence does not exist to prove Kuhn violated N.D.R. Prof. Conduct 1.7, the proper sanction is more appropriately considered under Standards 6.22 and 8.2.

Standard 6.22 states, “Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.” The Standards define “knowledge” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” The record indicates Kuhn was present at the guardianship/conservatorship hearing, heard all the testimony, and reviewed all the exhibits. He knew GAPS had been declared Jake Leno’s full guardian/conservator with authority over legal matters. Despite this knowledge, Kuhn drafted a will for Jake Leno without receiving permission or authorization from GAPS, thus violating the order establishing GAPS as Jake Leno’s guardian/conservator. Suspension is the appropriate sanction under Standard 6.22.

The hearing panel determined suspension to be an appropriate sanction under Standard 8.2, which states, “Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.” Kuhn has previously consented to discipline. In 2002, Kuhn served as guardian ad litem for a ward. The hearing panel concluded Kuhn violated N.D.R. Prof. Conduct 1.4(b), Communication, when he failed to advise parties to a real estate transaction that the ward had a guardian ad litem and evidence indicated he was incapacitated. The Board also found Kuhn violated N.D.R. Prof. Conduct 1.7(a) and (c), Conflict of Interest, when he provided legal advice to the parties with regard to the real estate transaction. Kuhn consented to a reprimand from the hearing panel for his violations. Under Standard 8.2, suspension is the appropriate sanction.

III.

On the basis of the record, we reject the hearing panel’s finding that Kuhn violated N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and accept the hearing panel’s finding that Kuhn clearly and convincingly violated N.D.R. Prof. Conduct 1.14, Client With Limited Capacity. We order Kuhn be suspended from the practice of law for ninety days, effective August 1, 2010, and that he pay the costs of the disciplinary proceeding in the amount of $2,654.07.

Notes, Problems, and Questions

1. Rule 1.14 requires an attorney to respect and protect his or her client.  Even though the client’s capacity may be diminished in some way, the attorney is not supposed to treat the client like a child.  The rule requires a balanced approach.  The attorney has to be mindful of the client’s impairment.  Nonetheless, the attorney still has to reasonably accommodate the client’s impairment so they can maintain a normal attorney-client relationship.  The diminished client is entitled to all of the rights and responsibilities of any other client.  If the client is unable to meet those responsibilities, the attorney is duty-bound to seek assistance for the client.

2. In the Kuhn case, the attorney prepared a will for a man who had been declared mentally incompetent by a court without bothering to contact the man’s guardian.  Kuhn did not appear to benefit from his client’s will.  Thus, his actions were probably not motivated by a desire to take advantage of the client.  However, he was sanctioned because his actions did not meet the reasonableness threshold. Might the outcome of the case have been different if the attorney had not known about the guardianship?

3. An attorney met with John Wilson, an 81 year old man, to discuss preparing a testamentary trust.  At the initial meeting, John gave the attorney a $1000 check for his retainer fee.  When the attorney took the check to John’s bank to cash it, the cashier told him that John did not have enough money in his account to cover the amount of the check.  The attorney’s shock showed on his face.  In response, the cashier said, “Over the last few months, Mr. Wilson has taken large amount of money out of his account.  He comes in at least twice a week to make a withdrawal.  Then, he goes to the parking lot across the street and hands the money to strangers.  He hasn’t been right since he had his stroke.”  What, if anything, is the attorney ethically required to do based upon his conversation with the cashier?  If he is paid for his services, should he draft the will?

1.6       Duty to Third Parties

A will and other testamentary documents speak at death.  Thus, by the time the estate planning attorney’s error is discovered, the client who contracted to have the will prepared is dead.  This limits the pool of persons who can sue the attorney for malpractice.  Future estate planning attorneys should not take any solace from that fact.  Malpractice cases against estate planning attorneys have increased since courts have relaxed the privity requirements and permitted suits by third parties.

1.6.1    The Personal Representative

Estate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010)

Jones, J.

At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal representative of an estate may maintain a legal malpractice claim for such pecuniary losses to the estate.

The complaint alleges the following facts. Defendants represented decedent Saul Schneider from at least April 2000 to his death in October 2006. In April 2000, decedent purchased a $1 million life insurance policy Over several years, he transferred ownership of that property from himself to an entity of which he was principal owner, then to another entity of which he was principal owner and then, in 2005, back to himself. At his death in October 2006, the proceeds of the insurance policy were included as part of his gross taxable estate. Decedent’s estate commenced this malpractice action in 2007, alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, the policy which resulted in an increased estate tax liability.

Supreme Court granted defendants’ motion to dismiss the complaint for failure to state a cause of action. The Appellate Division affirmed (60 A.D.3d 892, 876 N.Y.S.2d 121 [2009]), holding that, in the absence of privity, an estate may not maintain an action for legal malpractice. We now reverse and reinstate plaintiff’s claim.

Strict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the United States. In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, “absent fraud, collusion, malicious acts or other special circumstances” (Estate of Spivey, 138 A.D.2d 563, 564, 526 N.Y.S.2d 145[2d Dept.1988]). Some Appellate Division decisions, on which the Appellate Division here relied, have applied strict privity to estate planning malpractice lawsuits commenced by the estate’s personal representative and beneficiaries alike (Deeb v. Johnson, 170 A.D.2d 865, 566 N.Y.S.2d 688 [3d Dept. 1991]; Spivey, 138 A.D.2d at 564, 526 N.Y.S.2d 145; Viscardi v. Lerner, 125 A.D.2d 662, 663-664, 510 N.Y.S.2d 183 [2d Dept. 1986]; Rossi v. Boeher, 116 A.D.2d 636, 498 N.Y.S.2d 636, 498 N.Y.S.2d 318 [2d Dept.1986] ). This rule effectively protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also leaves the estate with no recourse against an attorney who planned the estate negligently.

We now hold that privity, or a relationship sufficiently approaching privity, exists between the personal representative of an estate and the estate planning attorney. We agree with the Texas Supreme Court that the estate essentially “ ‘stands in the shoes’ of a decedent” and, therefore, “has the capacity to maintain the malpractice claim on the estate’s behalf” (Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 787 [Tex.2006]). The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden of the estate is one of the central tasks entrusted to the professional. Moreover, such a result comports with EPTL 11-3.2(b), which generally permits the personal representative of a decedent to maintain an action for “injury to person or property” after that person’s death.

Despite the holding in this case, strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances. Relaxing privity to permit third parties to commence professional negligence actions against estate planning attorneys would produce undesirable results—uncertainty and limitless liability. These concerns, however, are not present in the case of an estate planning malpractice action commenced by the estate’s personal representative.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

1.5.1. The Intended Beneficiary

Sisson v. Jankowski, 809 A.2d 1265 (N.H. 2002)

Brock, C.J.

The United States District Court for the District of New Hampshire (McAuliffe, J.) has certified the following question of law, see Sup.Ct.R. 34:

Whether, under New Hampshire law and the facts as pled in plaintiff’s verified complaint, an attorney’s negligent failure to arrange for his or her client’s timely execution of a will and/or an attorney’s failure to provide reasonable professional advice with respect to the client’s testamentary options (e.g., the ability to cure a draft will’s lack of a contingent beneficiary clause by simply inserting a hand-written provision), which failure proximately caused the client to die intestate, gives rise to a viable common law claim against that attorney by an intended beneficiary of the unexecuted will.

For the reasons stated below, we answer the certified question in the negative.

Because this question arose in the context of a motion to dismiss and absent a copy of the plaintiff’s complaint, we assume the truth of the factual allegations recited by the court in its certification order, and construe all inferences in the light most favorable to the plaintiff. Hungerford v. Jones, 143 N.H. 208, 209, 722 A.2d 478 (1998).

In December 1998, the decedent, Dr. Warren Sisson, retained the defendants, Attorney Jankowski and her law firm, Wiggin & Nourie, P.A., to prepare his will and other estate planning documents. According to the plaintiff, Thomas K. Sisson, the decedent informed Attorney Jankowski that he was suffering from cancer, did not want to die intestate, and, therefore, wished to prepare a will that would pass his entire estate to the plaintiff, his brother. The decedent told Attorney Jankowski that he was particularly interested in ensuring that none of his estate pass to his other brother, from whom he was estranged. The record, however, does not reflect any request by the decedent that the will be executed by a date certain.

Attorney Jankowski prepared a will and other estate planning documents and, in mid-January 1999, mailed them to the decedent for his review and execution. The decedent was injured in mid-January, however, and, therefore, did not receive the documents until January 22, 1999, when a neighbor delivered them to him at a nursing home. Three days later, the plaintiff contacted Attorney Jankowski to tell her that the decedent wanted to finalize his estate planning documents quickly because of his deteriorating condition.

On February 1, 1999, Attorney Jankowski and two other law firm employees visited the decedent in the nursing home to witness his execution of the estate planning documents. The decedent executed all of the documents except his will. After Attorney Jankowski asked him whether the will should include provisions for a contingent beneficiary, the decedent expressed his desire to insert such a clause, thereby providing that his estate would pass to a charity in the event the plaintiff predeceased him.

According to the plaintiff, the decedent’s testamentary intent was clear as of the end of the February 1, 1999 meeting: the unexecuted will accurately expressed his intent to pass his entire estate to the plaintiff. Nevertheless, rather than modifying the will immediately to include a hand-written contingent beneficiary clause, modifying it at her office and returning later that day for the decedent’s signature, or advising the decedent to execute the will as drafted to avoid the risk of dying intestate and later drafting a codicil, Attorney Jankowski left without obtaining the decedent’s signature to the will.

Three days later, Attorney Jankowski returned with the revised will. The decedent did not execute it, however, because Attorney Jankowski did not believe he was competent to do so. She left without securing his signature and told him to contact her when he was ready to sign the will.

The plaintiff twice spoke with a Wiggin & Nourie attorney “to discuss Attorney Jankowski’s inaction regarding the will.” The attorney told him that he had spoken to other firm members about the situation. Nevertheless, after February 4, 1999, Attorney Jankowski made no attempt to determine whether the decedent regained sufficient testamentary capacity to execute his will.

The decedent died intestate on February 16, 1999. His estate did not pass entirely to the plaintiff as he had intended, but instead was divided among the plaintiff, the decedent’s estranged brother, and the children of a third (deceased) brother. The plaintiff brought legal malpractice claims against the defendants, alleging that they owed him a duty of care because he was the intended beneficiary of their relationship with the decedent.

For the purposes of this certified question, there is no dispute as to the decedent’s testamentary intent: he wanted to avoid dying intestate and to have his entire estate pass to the plaintiff. Nor does the plaintiff claim that the defendants frustrated the decedent’s intent by negligently preparing his will. Rather, the plaintiff asserts that the defendants were negligent because they failed to have the decedent execute his will promptly and to advise him on February 1 of the risk of dying intestate if he did not execute the draft presented at that meeting.

The narrow question before us is whether the defendants owed the plaintiff a duty of care to ensure that the decedent executed his will promptly. Whether a duty exists is a question of law.  Hungerford, 143 N.H. at 211, 722 A.2d 478. A duty generally arises out of a relationship between the parties. See MacMillan v. Scheffy, 147 N.H. 362, 364, 787 A.2d 867 (2001). While a contract may supply the relationship, ordinarily the scope of the duty is limited to those in privity of contract with one another. Id. We have, in limited circumstances, recognized exceptions to the privity requirement where necessary to protect against reasonably foreseeable harm. See Hungerford, 143 N.H. at 211, 722 A.2d 478. “[N]ot every risk of harm that might be foreseen gives rise to a duty,” however. Id. (quotation and brackets omitted). “[A] duty arises if the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. (quotation and brackets omitted).

“When determining whether a duty is owed, we examine the societal interest involved, the severity of the risk, the likelihood of the occurrence, the relationship between the parties, and the burden upon the defendant.” Id. Ultimately, whether to impose a duty of care “rests on a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability.” Walls v. Oxford Management Co., 137 N.H. 653, 657, 633 A.2d 103 (1993).

In Simpson v. Calivas, 139 N.H. 1, 4, 650 A.2d 318 (1994), we recognized an exception to the privity requirement with respect to a will beneficiary and held that an attorney who drafts a testator’s will owes a duty to the beneficiaries to draft the will non-negligently. In Simpson, a testator’s son sued the attorney who drafted his father’s will, alleging that the will failed to incorporate his father’s actual intent. Id. at 3, 650 A.2d 318. The will left all real estate to the plaintiff, except for a life estate in “our homestead,” which was left to the plaintiff’s stepmother. Id. The probate litigation concerned whether “our homestead” referred to all of the decedent’s real property, including a house, over one hundred acres of land and buildings used in the family business, or only to the house, and perhaps limited surrounding acreage. Id. The plaintiff argued that the decedent intended to leave him the buildings used in the family business and the bulk of the surrounding land in fee simple.  Id. at 4, 650 A.2d 318. The plaintiff lost the will construction action, and then brought a malpractice action against the drafting attorney, arguing that the decedent’s will did not accurately reflect his intent. Id. at 3, 650 A.2d 318.

We held that the son could maintain a contract action against the attorney, as a third-party beneficiary of the contract between the attorney and his father, and a tort action, under a negligence theory. Id. at 7, 650 A.2d 318. With respect to the negligence claim, we concluded that, “although there is no privity between a drafting attorney and an intended beneficiary, the obvious foreseeability of injury to the beneficiary demands an exception to the privity rule.” Id. at 5-6, 650 A.2d 318.

Simpson is consistent with the prevailing rule that a will beneficiary may bring a negligence action against an attorney who failed to draft the will in conformity with the testator’s wishes. (citations omitted)

Simpson is not dispositive of the certified question, however. The duty in Simpson was to draft the will non-negligently, while the alleged duty here is to ensure that the will is executed promptly. Courts in several jurisdictions have declined to impose a duty of care where the alleged negligence concerns the failure to have the will executed promptly. (citations omitted) The majority of courts confronting this issue have concluded that imposing liability to prospective beneficiaries under these circumstances would interfere with an attorney’s obligation of undivided loyalty to his or her client, the testator or testatrix.

In Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (1988), for instance, the decedent had met with his attorney approximately ten days before he died and informed her that he was soon to have open heart surgery and wanted to arrange for the disposition of his assets without going through probate. Accordingly, he directed the attorney to prepare two trust documents for his execution. Id. at 734. Completion of the trust documents was delayed, and by the time they were ready for execution, the decedent was too ill to see his attorney. He died without signing them. Id.

The Connecticut Supreme Court concluded that imposing liability to third parties for negligent delay in executing estate planning documents would contravene a lawyer’s duty of undivided loyalty to the client. Id. at 736. As the court explained:

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’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. These potential conflicts of interest are especially significant in the context of the final disposition of a client’s estate, where the testator’s testamentary capacity and the absence of undue influence are often central issues.

Id.

The Massachusetts Supreme Judicial Court has similarly reasoned that:

[I]n preparing a will[,] attorneys can have only one client to whom they owe a duty of undivided loyalty. A client who engages an attorney to prepare a will may seem set on a particular plan for the distribution of her estate.... It is not uncommon, however, for a client to have a change of heart after reviewing a draft will.... If a duty arose as to every prospective beneficiary mentioned by the client, the attorney-client relationship would become unduly burdened. Attorneys could find themselves in a quandary whenever the client had a change of mind, and the results would hasten to absurdity. The nature of the attorney-client relationship that arises from the drafting of a will necessitates against a duty arising in favor of prospective beneficiaries.

Miller, 725 N.E.2d at 550-51 (quotation, ellipses and brackets omitted).

We have recently reaffirmed the importance of an attorney’s undivided loyalty to a client. See MacMillian, 147 N.H. at 365, 787 A.2d 867. In MacMillan, we declined to extend Simpson to permit the buyers in a real estate transaction to sue the sellers’ attorney who prepared a deed, which failed to include a restrictive covenant. We ruled that there was no evidence that the primary purpose of employing the attorney to draft the deed was to benefit or influence the buyers. Id. Accordingly, we held that the buyers were not the intended beneficiaries of the attorney’s services. Id. Moreover, we held that it was imprudent to impose liability upon the attorney under these circumstances because doing so would “interfere with the undivided loyalty which the attorney owes his client and would detract from achieving the most advantageous position for his client.” Id. (quotation omitted).

Both parties cite compelling policy considerations to support their arguments. The plaintiff asserts that there is a strong public interest in ensuring that testators dispose of their property by will and that recognizing a duty of an attorney “to arrange for the timely execution of a will” will promote this public interest. He further argues that “[t]he risk that an intended beneficiary will be deprived of a substantial legacy due to delay in execution of testamentary documents” requires the court to recognize the duty he espouses. The defendants counter that recognizing a duty to third parties for the failure to arrange for the timely execution of a will potentially would undermine the attorney’s ethical duty of undivided loyalty to the client.

After weighing the policy considerations the parties identify, we conclude that the potential for conflict between the interests of a prospective beneficiary and a testator militates against recognizing a duty of care. “It is the potential for conflict that is determinative, not the existence of an actual conflict.” Miller, 725 N.E.2d at 550. Whereas a testator and the beneficiary of a will have a mutual interest in ensuring that an attorney drafts the will non-negligently, a prospective beneficiary may be interested in the will’s prompt execution, while the testator or testatrix may be interested in having sufficient time to consider and understand his or her estate planning options. As the Massachusetts Supreme Judicial Court recognized:

Confronting a last will and testament can produce complex psychological demands on a client that may require considerable periods of reflection. An attorney frequently prepares multiple drafts of a will before the client is reconciled to the result. The most simple distributive provisions may be the most difficult for the client to accept.

Id. at 551.

Creating a duty, even under the unfortunate circumstances of this case, could compromise the attorney’s duty of undivided loyalty to the client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options.

On balance, we conclude that the risk of interfering with the attorney’s duty of undivided loyalty to the client exceeds the risk of harm to the prospective beneficiary. For these reasons, we join the majority of courts that have considered this issue and hold that an attorney does not owe a duty of care to a prospective will beneficiary to have the will executed promptly. Accordingly, we answer the certified question in the negative.

Remanded.

Ethics Exercise One

Attorney Oscar Walker represented Melvin and Gloria Patterson in a real estate transaction.  During the course of that representation, Oscar and Gloria had an affair.  A few years later, while intoxicated, Gloria told Oscar that her daughter, Isabella, was a product of their affair.

A few years later, Oscar ran into Melvin in the parking lot of their health club.  At that time, Melvin asked Oscar if he was legally required to leave his property to his children.  In response, Oscar told Melvin that children did not have a legal right to inherit.  A few years later, Gloria filed for divorce and retained Oscar to represent her in the matter.  At that time, Gloria made Oscar promise not to reveal Isabella's true paternity.

After the divorce was final, Melvin hired an attorney to establish a testamentary trust.  Under the terms of the trust, Melvin left one-third of his property to Isabella, and the other two-thirds to his son, Damon, who was an attorney.  When Melvin passed away, Isabella retained Walker to contest Melvin's will because of undue influence on the part of Damon.

Ethics Exercise Two

After Curtis Jackson's wife Beatrice died, his only living heirs were his niece Ellen Blackman, and his nephews Thomas Jackson, Michael Levinson and Justin Powell.

In 2010, Curtis suffered a mild heart attack a few months after his 70th birthday.  Ellen urged her uncle to get one of his attorneys to prepare his will so he could have his affairs in order.  However, Curtis told her he was afraid to think about dying.  Finally, Curtis told Ellen that he was ready to get his affairs in order.  Consequently, Ellen set up an appointment for Curtis to meet with her attorney.  At the last minute, Curtis changed his mind and did not attend the meeting.  This process was repeated on at least two occasions.

In 2012, Curtis told Ellen that he was ready to do some estate planning.  He asked her to assist him with the matter.  Therefore, Ellen paid her attorney, Paul Johnson, to prepare a will for Curtis.  She paid for Johnson's services because she wanted the instruments prepared before her uncle again changed his mind.  At the time he prepared the will, Johnson had been Ellen’s attorney for ten years.

When Curtis passed away in 2015, he had an estate worth over 50 million dollars.  Curtis’ will provided for the following disposition of his estate: half of the estate was left to Ellen, and the other half of the estate was to be divided between Curtis’ three nephews.  The nephews want to set aside the probate of the will on grounds that, at the time Johnson prepared the will, he was Ellen’s attorney. 

Please address the ethical issues that arise as a consequence of the above scenarios.

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