Ethics and the Estate Planning Lawyer
| Publication year | 1988 |
| Pages | 241 |
| Citation | Vol. 17 No. 1 Pg. 241 |
1988, February, Pg. 241. Ethics and the Estate Planning Lawyer
All lawyers are obligated to conduct themselves within the boundaries set by the rules of "legal ethics." Failure to stay within these bounds may have disastrous consequences, such as temporary suspension from the practice of law or even disbarment. Yet surprisingly, only a small percentage of lawyers know what these rules are. A large portion of the practicing bar seems to have the attitude that they are good, basically honest folks who will do what is right; therefore, they do not need to be concerned about the rules of legal ethics, whatever they are. It comes as a surprise to some lawyers, who thought they were acting in a reasonable manner, when they are informed that they have violated an ethical rule and are about to be censured or even punished. "Who, me?" is a common response; many times, it is sincere.
Lawyers, of all people, ought to know what it means to play by the rules. Yet most lawyers, it seems, do not even know what the rules of the game are when it comes to ethics. Are Colorado lawyers governed by Colorado Rules, American Bar Association ("ABA") Rules, or both? Can they rely on Ethics Opinions from other states, ABA Ethics Opinions, Colorado Bar Association ("CBA") Ethics Opinions or anyone's opinion? Who decides when a violation has occurred, the CBA Ethics Committee or the CBA Grievance Committee? Do these committees work in tandem so that a consistent philosophy is applied? The answers to these questions may be surprising.
The ABA adopted the Model Code of Professional Responsibility ("Code") in 1969. The Code consists of Canons (broad principles), Disciplinary Rules (more specific rules) and Ethical Considerations (guidelines---somewhat like "mini" Ethics Opinions). In 1983, the ABA repealed the Code and adopted the Model Rules of Professional Conduct ("Rules").
The Code suffered from a major defect: it envisioned the lawyer in a very narrow context as an advocate involved in litigation. The Code provisions designed for the unfriendly atmosphere of litigation are often inappropriate and awkward to apply in the friendly atmosphere of the estate planner's office. The new ABA Rules recognize that the lawyer may be something other than an advocate---he or she may be an advisor, an intermediator or an evaluator for several parties. Thus, the Rules seem more pertinent from the estate planning lawyer's viewpoint.
Colorado adopted the Code but it did not adopt the Rules. Hence, Colorado attorneys now have two different sets of ethical rules, the Colorado Code and the ABA Rules. Which set of rules is controlling? Or must lawyers comply with both?
In addition to these two sets of ethical rules, the ABA, state bar associations and many municipal bar associations have ethics committees that, from time to time, publish Ethics Opinions. Are these Opinions binding? (Incidentally, it should be noted that the older ABA Ethics Opinions are based upon the Code, whereas the opinions issued since 1983 are based upon the Rules.)
To answer all of the questions raised above, it is necessary to examine not just the rules of the game but how the game is played. In Colorado, there are two separate committees involved: the CBA Ethics Committee and the Supreme Court Grievance Committee. These two committees have entirely different personnel and no coordinated plan of attack. In fact, the committees rarely communicate with each other. The Ethics Committee meditates upon abstract ethical issues; the Grievance Committee is down in the trenches enforcing what it perceives to be the ethical rules. The Ethics Committee may produce fascinating reading, but it is the Grievance Committee that can...
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