Avoiding the Witness Stand: Practices and Strategies to Protect Estate Plans and Estate Planners

• Jurisdiction: California,United States
• Publication year: 2009
• Citation: Vol. 15 No. 3

AVOIDING THE WITNESS STAND: PRACTICES AND STRATEGIES TO PROTECT ESTATE PLANS AND ESTATE PLANNERS

By Mike Masuda, Esq. and Leslie Finnegan, Esq.^*

The tranquility of an otherwise quiet afternoon that you had devoted to drafting a trust amendment is interrupted by a telephone call from an attorney announcing he has filed a contest of a will you drafted five years ago. He summons you to appear for a deposition and to bring your complete client file. The client's name does not ring a bell and when you pull her file you find it to be rather slim, containing only the will, two pieces of correspondence, and some brief notes.

The deposition gives you little concern. Because your recollection of this client is limited, you assume that what you do remember will be privileged as attorney-client communication. Expecting the deposition to be short, you make plans to have lunch with a friend that day.

At 4:00 p.m., you emerge from the deposition, during which counsel alternatively accused you of being the beneficiary's co-conspirator, his dupe, or professionally incompetent. As you nibble on a stale bagel as your belated lunch, you ponder: what could I have done to avoid all this?

Estate planning attorneys often cringe at the thought of litigation. After all, that is why they became estate planners. However, giving a little thought now to the possibility of future litigation gives estate planners the best chance of avoiding the witness stand.

I. RED FLAGS

Experience and hard lessons learned through litigation have revealed red flags signaling that a contest may be on the horizon. The waving of any of these flags should cause the drafter to pause and consider various prophylactic steps.

The client's health - Has the client been diagnosed with, or appear to suffer from, dementia (including Alzheimer's disease), stroke, metabolic encephalopathy (confusion and disorientation resulting from acute medical illness such as kidney failure, congestive heart failure or serious infection), or COPD/lung disease causing oxygen deprivation? Is the client taking medications which may impact mood or mental condition or using an oxygen tank?

The family - Is the spouse from a second, third, etc., marriage? So-called "blended families" are a ripe source for hurt feelings and slights, real or imagined, and a sense of entitlement. Are children or relatives being disinherited?

The estate - Does the requested plan significantly deviate from the client's long-standing plan or appear to be unusual, irrational, or grossly unfair? Has the client made multiple or rapid changes to the plan? Are any beneficiaries involved in the estate planning (i.e., another person directing the conversation and answering questions; the client looking to her for answers; this person communicating with you). Has the client previously seen other attorneys who elected not to draft her estate plan?

II. WHAT TO DO WHEN YOU SEE A RED FLAG

What should the drafter do when these red flags are waving? The initial step should be to consider the attorney's ethical obligations, which may well create a dilemma.

A CEB guide concisely describes this dilemma:

"What does the attorney do? It is one thing to refuse to participate in the preparation of documents to change the client's estate plan. It is another to take affirmative action to protect the client from his or her impairments or from the predations of third parties. How does the attorney reconcile various ethical duties to the client: the duty of loyalty, the duty to maintain the client's confidences, and the duty to avoid conflicts of interests? When these duties are irreconcilable, which duty trumps the others?"¹

On one hand, you do not want to be complicit in conduct contrary to the client's best interests. On the other hand, you wish to avoid acting so paternalistically so as to deny the client the right to dispose of her property as she desires.

Unfortunately, no California judicial decision or ethics opinion provides definitive guidance. Three older ethics opinions conclude the duty of confidentiality prohibits the attorney from taking steps to protect the client from cognitive impairment; e.g., instituting conservatorship proceedings or revealing confidential information to a physician.² A 1999 opinion from the San Francisco Bar Association opines that a lawyer may, but is not required to, take protective action such as recommending the appointment of a conservator or making limited disclosures necessary to achieve the client's best interests.³

Because of the paucity of guidance on this issue, the drafter should exercise care before taking affirmative steps to protect the client from himself. (Many attorneys simply decline to represent a seemingly impaired person.) It is important from the outset to make sure you identify who exactly is your client. A family member or beneficiary may mistakenly believe you are their attorney. It is vital that you explain to all participants and confirm in writing exactly whom you are representing. Doing so avoids both actual conflicts of interest and misunderstandings.

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The good news for drafting attorneys is that generally they owe no duty to beneficiaries under a current or prior instrument for failing to ascertain that a client lacked capacity.⁴

III. IN A CONTEST, YOU WILL BE A WITNESS

If a testamentary document is contested, the drafting attorney will be a key percipient witness. In fact, at least one case has held that the drafting attorney's testimony is entitled to "much weight."⁵ A common misconception is that in a will or trust contest the attorney-client privilege will protect all communications between the drafting attorney and a...