2.2 Relationship Between Client and Lawyer

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

2.2 RELATIONSHIP BETWEEN CLIENT AND LAWYER

2.201 Lawyer Competence - Rule 1.1.

RULE 1.1. Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

A. Overview. The rule's instruction to provide competent legal representation to a client seems self-evident. The estate planning lawyer may need skills in understanding property concepts, state law requirements for wills, trusts, and business entities, issues involving income, estate, gift, and generation-skipping transfer taxes, methods to deal with incapacity issues of individuals, and other matters. A lawyer who lacks the skill or knowledge required to meet the needs of a particular client can overcome that deficiency by additional research, additional study, or involving another more experienced lawyer in the representation. ⁴

B. Accurate Information from Client. Competent representation of an estate planning client depends on adequate preparation and thoroughness. To meet this requirement, the lawyer will need to obtain accurate information from the client. Lawyers should make certain that they solicit appropriate information from their clients to adequately prepare estate planning documentation and advice and should stress the importance of accurate information to their clients. Unless a lawyer has some reason to suspect that the client is supplying inaccurate information, the lawyer should be able to rely on client representations about asset ownership, value, and beneficiary designation, if any. ⁵

C. Mistakes in Judgment Do Not Indicate Lack of Competence. The Commentary to the Rules of Professional Conduct by the American College of Trust and Estate Counsel notes that a competent lawyer

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may not precisely assess the tax or local law consequences of a particular transaction. At times, the facts concerning a particular transaction may be in dispute. At other times, the case or regulatory law that applies to the transaction may be unsettled. When courts or regulatory bodies make determinations of fact, those determinations may not have been reasonably foreseeable. Some estate planning transactions present substantial complexity and novel facts that may render a conclusion about the legal or tax consequences subject to challenge and contrary interpretations. Reaching a conclusion that is not ultimately sustained by a court or other regulatory body does not mean that the lawyer has not competently represented his or her estate planning client. ⁶

The comments to Virginia Rule 1.1 note that attention should be "paid to the benefits and risks associated with relevant technology." ⁷ Lawyers should be aware that communicating electronically with a client and transmitting or storing client documents can affect client confidentiality and preservation of client information. ⁸ A lawyer should stay "reasonably informed about developments in technology used in client communications and document storage, including improvements, discoveries of risks and best practices." ⁹ Virginia Rule 1.6 more specifically addresses technology as it relates to client confidentiality.

D. Supervising Execution of Documents. The lawyer who prepares estate planning documents should supervise the signing of the documents or arrange for another lawyer to supervise their signing. A lawyer should develop a procedure for execution and follow that procedure consistently. If the client requests that the client be allowed to oversee the signing of documents without the lawyer's supervision and the lawyer believes that the client is sufficiently sophisticated and reliable to follow instructions, the lawyer can arrange delivery of the documents to the client with written instructions as to how they should be signed. The lawyer should request copies of the signed documents and review them to make sure that the client has properly followed those instructions. ¹⁰

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E. Self-Proving Affidavit. LEO 1283 ¹¹ states that while a lawyer may omit a self-proving affidavit on a will at the direction of a client after reasonable disclosure of the consequences of that decision, a lawyer who routinely omits the self-proving affidavit from wills is not zealously representing the client if the client is not advised of the advantages and disadvantages of including the affidavit in a will. This conclusion, based on the former Code of Professional Responsibility, does not appear to be altered by the adoption of the current Virginia Rules.

F. Related Rules. In performing services competently, a lawyer is governed by Rules 1.2 on the Scope of the Representation, 1.3 on Diligence, 1.4 on Communication, 1.5 on Fees, 1.6 on Confidentiality of Information, and 5.1, 5.3, and 5.5 on supervising legal and nonlegal staff.

2.202 Scope of Representation - Rule 1.2.

RULE 1.2. Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer may limit the objectives of the representation if the client consents after consultation.

(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to

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determine the validity, scope, meaning, or application of the law.

(d) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

A. Overview. A lawyer and his or her client should be able to define the estate planning objectives of the representation. Frequently in estate planning contexts, multiple clients are part of one engagement, especially spouses, parents, and children. The lawyer should discuss the estate planning objectives of the representation of the clients and determine whether there are potential conflicts of interest or if sharing confidential information could preclude the lawyer from representing all of the clients. The lawyer should consider discussing representation with each person individually to minimize the influence of the other parties and to make sure no conflicts will arise. Where a business entity is involved in the planning, the lawyer should consider whether a conflict may exist or arise between the interests of the business entity and the individual interests of the owners in the context of estate planning transactions.

In the course of the representation, the lawyer will receive information from the client that will help the lawyer and the client further define the objectives of the representation. An objective of the lawyer should be to sufficiently educate the client about the various alternatives available to accomplish his or her objectives. The lawyer should also inform the client not only of the method for achieving client objectives but also of the tax consequences and the fees and other costs that may be incurred for professional, fiduciary, investment, appraisal, and other services currently and in the future.

B. Limitation on Representation. Rule 1.2 recognizes that the lawyer and the client may agree to limit the scope of the lawyer's representation. For example, a client may engage a lawyer to prepare a will for the client when a durable financial power of attorney may also be appropriate to deal with issues that the client faces. If the client declines after the lawyer advises the client about the consequences of the client's refusal to have the lawyer prepare the power of attorney, the lawyer is not obligated to provide

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that service. At times the lawyer and the client may disagree on the action that the client should take based on the advice of the lawyer. As long as the lawyer has obtained informed consent, the client's desire to limit the representation will control the engagement. ¹²

C. Lawyer as Mere Scrivener. Arguments that a lawyer was a mere scrivener who simply transcribed the wishes of the consulting party but did not provide legal services have not been particularly successful in avoiding a lawyer-client relationship for purposes of the conflicts rules. LEO 1352 ¹³ deals with a lawyer who advised two individuals in connection with the incorporation of their business. A dispute arose concerning the corporation, and the lawyer took the position that he represented the corporation. He participated in attempting to resolve the dispute by pointing out issues and acting as a scrivener. He was subsequently subpoenaed by one side to testify in the ensuing litigation. Although the opinion considers whether the lawyer may testify, the Standing Committee on Legal Ethics noted that whenever a lawyer accepts a role as scrivener and neither party has independent counsel, there is a danger of improper multiple representations.

The Committee later addressed the limits of the "mere scrivener" argument in the context of lawyers who serve at state prisons pursuant to section 53.1-40 of the Virginia Code. ¹⁴ Under that section, a judge may appoint a lawyer for a state correctional facility "to counsel and assist indigent prisoners . . . regarding any legal matter relating to their incarceration." The...