During the past year, COVID-19 has left its mark on the legal profession. Due to the nature of the pandemic, lawyers in the probate, estate and trust area of practice have been busy. In that area of practice potential or actual conflicts of interest often arise and must be handled appropriately. Whether lawyers work as solos or are part of larger firms, the legal services often requested by probate, estate and trust clients can evolve from simple estate planning and document preparation to much more sophisticated and involved legal services, potentially creating differing roles and relationships to consider.
For example, a lawyer may initially assist with estate planning and drafting trusts. Upon the death of a spouse, that lawyer may be asked to assist in managing assets that pass to the surviving spouse. As the client ages, adult children may request that the lawyer help with establishing a guardianship for the parent. While this may seem a logical progression in the representation of the client, these situations can present perilous conflicts. The lawyer must ask at each and every stage of engagement: Who is my client? The answer for this described scenario should be the initial, long-term client, not the adult child seeking the guardianship (of your long-term client). The adult child is best referred for representation to independent counsel.
There are many other scenarios in this area of practice that can give rise to potential or actual conflicts of interest, which we will delve into in future issues of the OBLIC Alert. Keep these Best Practices in mind:
- Clearly identify who is your client.
- Identify and address potential conflicts of interest, especially in continued family representation.
- Communicate clearly to family members why you may not be able to represent them.
- Refer potential clients with conflicts to independent counsel.
- Contact OBLIC to discuss conflicts and obtain an ethics consult.
Gretchen K. Mote, Esq.
Director of Loss Prevention