I. Introduction
At about the same time that the members of the NAELA Professionalism and Ethics Committee were revising the NAELA Aspirational Standards, first published in 2005, a similar effort was being undertaken by the American College of Trust and Estate Counsel (ACTEC). ACTEC is a professional association of attorneys and law professors whose specialty area of practice is estate planning. In 2016, the ACTEC Professional Responsibility Committee completed the fifth edition of the ACTEC Commentaries on the Model Rules of Professional Conduct.
As noted in this article, substantial overlap exists between the practices of NAELA attorneys and ACTEC attorneys. This article compares the ACTEC Commentaries with the revised NAELA Aspirational Standards, published in 2017, with an eye toward highlighting both similarities and differences between the two. As the article illustrates, even though attorneys in both organizations may approach their client matters from a slightly different frame of reference, they face similar ethical challenges and each organization can gain insight from studying the perspectives and conclusions of the other.
II. Comparison of Elder and Special Needs Law and Estate Planning Practices
It is tempting at times to make the following blunt distinction between estate planning and elder and special needs law: Estate planning focuses on planning for the disposition of an individual’s assets at death whereas elder and special needs law planning focuses on the care of an individual while that individual is alive. This distinction is inaccurate, however, in that estate planning attorneys often engage in an array of “life planning” activities that include not only the disposition of an individual’s assets (e.g., through gifting or establishing trusts) but also the management of the individual’s health and welfare (e.g., through guardianship or conservatorship or health care advance directives). In the same vein, elder and special needs law planning often includes planning for the disposition of an individual’s assets not only during life but also at death.
This overlap is illustrated by the definitions that NAELA and ACTEC ascribe to the law practices of their members. NAELA members, of course, specialize in the practice of elder law and special needs planning. The NAELA website describes this practice as follows:
Elder law and special needs planning includes helping [aging Americans and individuals of all ages with special needs] and their families with planning for incapacity and long-term care, Medicaid and Medicare coverage (including coverage of nursing home and home care), health and long-term care insurance, and health care decision-making. It also includes drafting of special needs and other trusts, the selection of long-term care providers, home care and nursing home problem solving, retiree health and income benefits, retirement housing, and fiduciary services or representation.
ACTEC members, also known as Fellows, on the other hand, specialize in the area of law that is commonly referred to as “estate planning.” However, ACTEC uses that term broadly to encompass a number of subareas, many of which overlap with the practice of elder and special needs law. The ACTEC Bylaws contain the following list of topics that fall under the rubric of “trust and estate law”: “preparation of wills and revocable and irrevocable trusts; probate; trust, guardianship and conservatorship administration; transfer taxation planning and administration; integration of asset protection planning with the aforementioned practice areas; fiduciary income taxation; incapacity planning; elder law; employee benefit planning; donative planning; charitable planning, advising exempt organizations; and probate, trust, and protective proceedings litigation.” The ACTEC Commentaries relate to law practice in all of these areas.
Using this overlap as a backdrop and keeping in mind that many attorneys practice both estate planning and elder and special needs law, this article compares and contrasts the ways in which the matters covered by the revised NAELA Aspirational Standards are dealt with in the ACTEC Commentaries to give practitioners the benefit of the different perspectives reflected therein.
III. Introduction to the American College of Trust and Estate Counsel and the ACTEC Commentaries on the Model Rules of Professional Conduct
For those who may not be familiar with it, ACTEC is an association of approximately 2,500 trust and estate practitioners and law professors who are elected to fellowship (membership) on the basis of their skills and expertise in the broad area of the law that is commonly referred to as “estate planning.” ACTEC Fellows practice and teach throughout the United States and Canada and other foreign jurisdictions. One of ACTEC’s purposes is “to improve and reform probate, trust and tax laws, procedures, and professional responsibility.” Consistent with this purpose, in 1993, ACTEC and the ACTEC Foundation promulgated the first edition of the ACTEC Commentaries. The ACTEC Commentaries were refined and clarified over the succeeding years (1995, 1999, and 2005) and currently appear in the fifth edition, published in 2016.
The Introduction to the fifth edition explains the impetus behind and purpose of the ACTEC Commentaries:
Neither the Model Rules of Professional Conduct (MRPC) nor the Comments to them provide sufficiently explicit guidance regarding the professional responsibilities of lawyers engaged in a trusts and estates practice. Recognizing the need to fill this gap, ACTEC has developed the following Commentaries on selected rules to provide some particularized guidance to ACTEC Fellows and others regarding their professional responsibilities. First published in 1993, the Commentaries continue to assist courts, ethics committees and others concerned with issues regarding the professional responsibility of trusts and estates lawyers. The Commentaries generally seek to identify various ways in which common problems can be dealt with, without expressly mandating or prohibiting particular conduct by trusts and estates lawyers. While the Commentaries are intended to provide general guidance, ACTEC recognizes and respects the wide variation in the rules, decisions, and ethics opinions adopted by the several jurisdictions with respect to many of these subjects.
Each edition of the ACTEC Commentaries was prepared under the auspices of ACTEC’s Professional Responsibility Committee, with the able assistance of one or more reporters. The format of the ACTEC Commentaries is to quote in full selected ABA Model Rules of Professional Conduct that are of particular relevance to the estate planning practice and then offer Commentary on each Rule. In addition, following each Commentary is a list of Annotations, which include illustrative relevant court decisions and ethics opinions related to that Commentary. The Annotations are not intended to be exhaustive. In the fifth edition, only those Annotations that are considered to be the sources of the most important guidance on each Commentary appear. Beginning with the publication of the fifth edition of the ACTEC Commentaries, the ACTEC website makes available to the public a more comprehensive set of Annotations.
From the outset, the ACTEC Commentaries have reflected certain themes, including “(1) the relative freedom that lawyers and clients have to write their own charter with respect to a representation in the trusts and estates field; (2) the generally nonadversarial nature of the trusts and estates practice; (3) the utility and propriety, in this area of law, of representing multiple clients, whose interests may differ but are not necessarily adversarial; and (4) the opportunity, with full disclosure, to moderate or eliminate many problems that might otherwise arise under the MRPC.” The Commentaries have also incorporated “the role that the trusts and estates lawyer has traditionally played as the lawyer for members of a family” recognizing that “[i]n that role a trusts and estates lawyer frequently represents the fiduciary of a trust or estate and one or more of the beneficiaries.”
IV. Comparison of the NAELA Aspirational Standards and the ACTEC Commentaries
At the outset, one major difference between the ACTEC Commentaries and the NAELA Aspirational Standards that should be noted is their intended use. The ACTEC Commentaries are intended to be used as guidance for the estate planning attorney who is seeking to practice law responsibly within the parameters of the ABA Model Rules (or the rules of the relevant jurisdiction). The ACTEC Commentaries are “aspirational” in a sense because they are intended not only to highlight the challenges of but also to promote the highest-level approaches to practicing estate planning law “ethically.” However, they are not intended to lay out principles governing the conduct of ACTEC Fellows. The NAELA Aspirational Standards, on the other hand, not only build upon and support the Model Rules of Professional Conduct relevant to each NAELA member but also, as a condition of membership, require every NAELA member to support the Aspirational Standards.
Both the ACTEC Commentaries and the NAELA Aspirational Standards have one important feature in common. Neither is intended to be used to “define or establish a legal or community standard nor are they intended to be used to support a cause of action, create a presumption of a breach of a legal duty, or form a basis for civil liability.” With these two observations in mind, the following sections describe how the topics addressed in the NAELA Aspirational Standards are dealt with in the ACTEC Commentaries.
A. Holistic Approach
Standard A, Holistic Approach, of the NAELA Aspirational Standards clearly illustrates both the contrasts and the similarities between the work of an estate planning attorney and the work of an elder and special needs law attorney. The Standard highlights two essential differences between these two types of legal practice.
The first essential difference is the nature of the typical client. Standard A, Section 1, describes typical elder and special needs law clients as follows: “individuals with a physical or mental health condition requiring special care, attention, and protection because the client may have a memory, mobility, or other disabling impairment, chronic condition, or other illness.” Although it is difficult to identify the typical client of an estate planning attorney, it is fair to say that many, if not the vast majority, of an estate planning attorney’s clients do not exhibit the aforementioned conditions, at least at the beginning of the attorney-client relationship.
The estate planning attorney’s client is usually an individual who has modest or even immense wealth and who has chosen to work with the attorney to organize the transition of that wealth and to manage other family-related matters, such as naming a guardian for the client’s children or even for the client in the event he or she becomes incapacitated. This is not to say that estate planning attorneys often do not deal with individuals who have the conditions described in the Standard. However, whereas the elder and special needs law attorney-client relationship often begins with a client in an incapacitated condition, the estate planning attorney’s client often begins the representation as a healthy individual with good mental capacity but later becomes more vulnerable due to illness, accident, or age-related frailties.
The Comment on Standard A, Section 1, also points out that the elder and special needs law attorney typically focuses on the “life needs” of individuals. The second essential difference between an estate planning practice and an elder and special needs law practice is that many of the 12 life needs listed in the Comment are not topics that are traditionally included in an estate planning representation. Estate planning attorneys usually do not, for example, deal with access to health care, the accommodation of special needs, health insurance issues, or age discrimination. The Example in Standard A, Section 1, illustrates this difference by showing that, in addition to handling a frail client’s estate planning, the elder and special needs law attorney may also “offer advice on how to [arrange and] pay for [home care, assisted living, or nursing home] services … and what measures the client may wish to consider to prevent financial exploitation.” An estate planning attorney usually does not give advice on assisted living arrangements or paying for health care.
Standard A of the Aspirational Standards also illustrates some basic similarities between an estate planning practice and an elder and special needs law practice. For example, Section 2 highlights the fact that, because meeting the life needs of the client, as described in Section 1, is above and beyond traditional legal services, the elder and special needs law attorney may turn to nonlegal professionals and services to help address some of these needs. Those professionals and services “include advocacy by a health care professional, capacity screening by a psychologist or neurologist, residential placement by a social worker, medication management by a nurse, tax preparation and asset organization by an accounting professional, investment advice by a financial planner, and real property appraisal services by a licensed appraiser.” This is such an important component of an elder and special needs law practice that NAELA devotes an entire Standard to the use of nonlegal services (Standard J, which is discussed in Section IV(J) of this article). Estate planning attorneys also turn to many of these professionals. As discussed in Section IV(J) of this article, in recognition of the professional responsibility challenges involved when working with nonlawyer nonlawyer professionals, the fifth edition of the ACTEC Commentaries added a Commentary on ABA Model Rule 5.3, Responsibilities Regarding Nonlawyer Assistance.
Aspirational Standard A, Sections 3, 4, and 5 revolve around the notion that the elder and special needs law attorney often represents a client in the context of the client’s family. This context adds a challenge that typically does not exist, for example, for a litigator who is representing a defendant in a personal injury lawsuit. Estate planning attorneys share with elder and special needs law attorneys the phenomenon of representing clients in families, thus placing great value on family harmony. The ACTEC Commentary on ABA Model Rule 1.7 (which is discussed in Section IV(D) of this article) is designed to help the estate planning attorney navigate family representation in the confines of the ABA Model Rules.
Aspirational Standard A, Section 6, recommends that the elder and special needs law attorney be proactive in putting into place measures to prevent financial exploitation and abuse. The Comment on Standard A, Section 6, describes some of these measures in a manner that is similar to the approach taken by the ACTEC Commentary on ABA Model Rule 1.14, Client With Diminished Capacity. This ACTEC Commentary provides:
As a matter of routine, the lawyer who represents a competent adult in estate planning matters should provide the client with information regarding the devices the client could employ to protect his or her interests in the event of diminished capacity, including ways the client could avoid the necessity of a guardianship or similar proceeding. Thus, as a service to a client, the lawyer should inform the client regarding the costs, advantages and disadvantages of durable powers of attorney, directives to physicians or living wills, health care proxies, and revocable trusts. A lawyer may properly suggest that a competent client consider executing a letter or other document that would authorize the lawyer to communicate to designated parties (e.g., family members, health care providers, a court) concerns that the lawyer might have regarding the client’s capacity. In addition, a lawyer may properly suggest that a durable power of attorney authorize the attorney-in-fact, on behalf of the principal, to give written authorization to one or more of the client’s health care providers and to disclose information for such purposes upon such terms as provided in such authorization, including health information regarding the principal, that might otherwise be protected against disclosure by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). If the client wishes the durable power of attorney to become effective at a date when the client is unable to act for him- or herself, the lawyer should consider how to draft that power in light of the restrictions found in HIPAA.
In the fifth edition of the ACTEC Commentaries, a paragraph was added in the Commentary on Rule 1.14 that addresses the tension between the confidentiality rules and the reporting of elder abuse. This paragraph is quoted in Section IV(E) of this article.
B. Client Identification
As noted previously, an elder and special needs law practice is typically defined by the types of clients who are served and by those clients’ unique legal needs. The clients of an estate planning attorney, on the other hand, are of all ages and usually have full capacity at the start of the attorney-client relationship. Nevertheless, both estate planning and elder and special needs law attorneys face special challenges in identifying exactly who the client is in any given representation. These challenges come about primarily because of the involvement of family members and because sometimes a representative of the client (e.g., a guardian, a conservator) is in the picture too.
Standard B, Client Identification, Section 1, introduces the concept of the “protected individual,” who is “the individual whose personal and property interests are the subject of the representation.” This individual may or may not have capacity, may or may not be represented by a fiduciary, and may or may not need the assistance of others, such as family members, in the representation.
Standard B, Section 2, addresses the importance of identifying the client when a fiduciary is acting on behalf of another individual. An elder and special needs law attorney typically deals with fiduciaries such as guardians or trustees of special needs trusts, whose duty clearly flows to one individual who also usually lacks capacity or is otherwise vulnerable. Under such circumstances, even if the fiduciary is identified as the attorney’s client, the Aspirational Standards take the approach of Section 51(4) of the Restatement of the Law Governing Lawyers that the attorney owes a “duty of care” to the protected individual.
The types of fiduciaries with whom an estate planning attorney deals run the gamut. These fiduciaries may be guardians, conservators, or trustees of special needs trusts. On the other hand, they may be personal representatives of estates or trustees of trusts with multiple beneficiaries who are capable of protecting their own interests. This magnifies the difficulty of identifying who the client is and to whom the attorney owes duties.
The thorniness of this issue was recognized in the first edition of the ACTEC Commentaries, in which the reporter wrote, “Courts have perhaps had the most difficulty in defining the role and duties of the lawyer who represents a fiduciary in the fiduciary’s representative capacity with respect to a fiduciary estate (who might be said to represent the fiduciary generally).” The fifth edition of the ACTEC Commentaries addresses this issue in several sections. In the Commentary on ABA Model Rule 1.2, Scope of Representation, a distinction is made between an attorney representing a fiduciary in the fiduciary’s individual capacity (e.g., a trustee who is defending himself or herself against a lawsuit brought by the beneficiaries) and representing a fiduciary in the fiduciary’s capacity as a fiduciary. The Commentary notes that an attorney may represent a fiduciary both in an individual capacity and “generally” (i.e., in the fiduciary’s capacity as a fiduciary). The Commentary also notes that the majority of jurisdictions dictate that when an attorney is representing a fiduciary, the fiduciary is the attorney’s client. However, the Commentary also notes:
The lawyer for the fiduciary owes some duties to the beneficiaries of the fiduciary estate although he or she does not represent them. The duties, which are largely restrictive in nature, prohibit the lawyer from taking advantage of his or her position to the disadvantage of the fiduciary estate or the beneficiaries. In addition, in some circumstances the lawyer may be obligated to take affirmative action to protect the interests of the beneficiaries. The beneficiaries of a fiduciary estate are generally not characterized as direct clients of the lawyer for the fiduciary merely because the lawyer represents the fiduciary generally with respect to the fiduciary estate.
The ACTEC Commentaries also address the representation of fiduciaries in the Commentaries on ABA Model Rule 1.6, Confidentiality, and ABA Model Rule 1.7, Conflict of Interest (both of which are discussed later in this article). But perhaps the closest intersection between the NAELA Aspirational Standards and the ACTEC Commentaries is in the Commentary on Rule 1.14, Client With Diminished Capacity. This Commentary reiterates that, even though an attorney may have been retained by the fiduciary, “in such a case the attorney for the fiduciary owes some duties to the person with diminished capacity.”
C. Engagement Agreements and Document Drafting
The ACTEC Commentary on ABA Model Rule 1.2 states, “The agreement between a lawyer and client regarding the scope and objectives of the representation is often best expressed in an engagement letter or other written communication.” The ACTEC Commentaries do not list the appropriate contents of an engagement letter, whereas NAELA Aspirational Standard C, Engagement Agreements and Document Drafting, does. However, the ACTEC Professional Responsibility Committee does make available on its website an engagement letter guide. This document, which is designed to be used in conjunction with the ACTEC Commentaries, contains a variety of checklists and form letters for different types of estate planning representation.
The ACTEC Commentaries address only one of the four specific document drafting scenarios that are laid out in Aspirational Standard C, Section 4: (d) Drafting documents to be signed by nonclients.” The ACTEC Commentary on ABA Model Rule 1.7 provides:
Existing Client Asks Lawyer to Prepare Will or Trust for Another Person. A lawyer should exercise particular care if an existing client asks the lawyer to prepare for another person a will, trust, power of attorney or similar document that will benefit the existing client, particularly if the existing client will pay the cost of providing the estate planning services to the other person. The lawyer would, of course, need to communicate with the other person and decide whether to undertake representation of that person as a new client, along with all the duties such a representation involves, before agreeing to prepare such a document. If the representation of both the existing client and the new client would create a significant risk that the representation of one or both clients would be materially limited, the representation can only be undertaken as permitted by MRPC 1.7(b). In any case, the lawyer must comply with MRPC 1.8(f) (Conflict of Interest: Current Clients: Specific Rules) and should consider cautioning both clients of the possibility that the existing client may be presumed to have exerted undue influence on the other client because the existing client was involved in the procurement of the document.
The ACTEC Commentary on ABA Model Rule 1.1 does address the supervision of document execution in a way that is similar to Aspirational Standard C, Section 4. The Commentary provides:
Generally, the lawyer who prepares estate planning documents for a client should supervise their execution. In doing so, it is advisable for the lawyer to develop a procedure for execution that is complete and adequate to meet the requirements of the jurisdiction where the document is to be executed, and to follow that procedure consistently whenever a document of that sort is executed. Of course, he or she may arrange for another lawyer to do so. If it is not practical for a lawyer to supervise the execution or if the client so requests, the lawyer may arrange for the documents to be delivered to the client with written instructions regarding the manner in which they should be executed. The lawyer should do so only if the lawyer reasonably believes that the client is sufficiently sophisticated and reliable to follow the instructions and that there are no present concerns about potential challenges. The lawyer who sends estate planning documents to the client for signing outside of the lawyer’s office should request original signed documents be returned for the lawyer’s review. If the lawyer determines the documents were signed improperly, the lawyer should resend the estate planning documents for the client to sign. Note that in some jurisdictions the supervision of the execution of estate planning documents constitutes the practice of law, which a lawyer may not delegate to a member of the lawyer’s staff who is not a lawyer.
D. Conflicts of Interest
Both the NAELA Aspirational Standards and the ACTEC Commentaries address potential conflicts of interest because elder and special needs law attorneys as well as estate planning attorneys often encounter situations in which it is not only more practical but also more conducive to family harmony to represent multiple clients at the same time.
The ACTEC Commentary on ABA Model Rule 1.6 gives a detailed explanation of the “joint” and “separate” representation referenced in Aspirational Standard D, Conflicts of Interest, Sections 1 and 2. The ACTEC Commentary on Rule 1.7 provides further guidance:
Before, or within a reasonable time after, commencing the representation, a lawyer who is consulted by multiple parties with related interests should discuss with them the implications of a joint representation (or a separate representation if the lawyer believes that mode of representation to be more appropriate and separate representation is permissible under the applicable local rules) … . In particular, the prospective clients and the lawyer should discuss the extent to which material information imparted by either client would be shared with the other and the possibility that the lawyer would be required to withdraw if a conflict in their interests developed to the degree that the lawyer could not effectively represent each of them. The information may be best understood by the clients if it is discussed with them in person and also provided to them in written form, as in an engagement letter or brochure.
The ACTEC Commentary on ABA Model Rule 1.14 recognizes, as does Aspirational Standard D, Section 3, that a client’s family members may want to play a role in the client’s legal representation, particularly if the client lacks capacity. The advice given in this Commentary is similar to that in Aspirational Standard D, Section 3. The Commentary states:
In addition, the client who suffers from diminished capacity may wish to have family members or other persons participate in discussions with the lawyer. The lawyer must keep the client’s interests foremost. Except for disclosures and protective actions authorized under MRPC 1.14, the lawyer should rely on the client’s directions, rather than the contrary or inconsistent directions of family members, in fulfilling the lawyer’s duties to the client. In meeting with the client and others, the lawyer should consider the impact of a joint meeting on the attorney-client evidentiary privilege.
Aspirational Standard D, Section 5, deals with a scenario that perhaps is more often encountered by an estate planning attorney than by an elder and special needs law attorney. In this scenario, the client requests that the attorney serve as a fiduciary for the client or the client’s estate. The ACTEC Commentary on ABA Model Rule 1.7 supports the concept that the client should be free to choose anyone he or she wishes to serve as a fiduciary. The ACTEC Commentary states, “As a general proposition, lawyers should be permitted to assist adequately informed clients who wish to appoint their lawyers as fiduciaries.” However, the ACTEC Commentary adds cautions similar to those in the Comment on Aspirational Standard D, Section 5. The Commentary states:
For the purposes of this Commentary, a client is properly informed if the client is provided with information regarding the role and duties of the fiduciary, the ability of a lay person to serve as fiduciary with legal and other professional assistance, and the comparative costs of appointing the lawyer or another person or institution as fiduciary. The client should also be informed of any significant lawyer-client relationship that exists between the lawyer or the lawyer’s firm and a corporate fiduciary under consideration for appointment.
E. Confidentiality
NAELA Aspirational Standard E, Confidentiality, and the ACTEC Commentaries exhibit similar approaches to the lawyer’s fundamental duty to maintain the confidentiality of client information. Reflecting Standard E, Section 1, the ACTEC Commentary on ABA Model Rule 1.6 states that “joint clients should be advised at the outset of the representation that information from either client may be required to be shared with the other if the lawyer considers such sharing of information necessary or beneficial to the representation. This advice should be confirmed in writing, and the lawyer should consider asking the clients to acknowledge that understanding in writing.”
Similar to Aspirational Standard E, Sections 2 and 3, the ACTEC Commentary on Rule 1.6 describes the core principle of a joint representation; that is, that no relevant information imparted by one jointly represented client will be withheld from the other jointly represented client. The ACTEC Commentary goes on to give guidance as to what the attorney should do if a jointly represented client insists that certain information be kept confidential:
Absent an advance agreement that adequately addresses the handling of confidential information shared by only one joint client, a lawyer who receives information from one joint client (the “communicating client”) that the client does not wish to be shared with the other joint client (the “other client”) is confronted with a situation that may threaten the lawyer’s ability to continue to represent one or both of the clients. As soon as practicable after such a communication, the lawyer should consider the relevance and significance of the information and decide upon the appropriate manner in which to proceed. The potential courses of action include, inter alia, (1) taking no action with respect to communications regarding irrelevant (or trivial) matters; (2) encouraging the communicating client to provide the information to the other client or to allow the lawyer to do so; and, (3) withdrawing from the representation if the communication reflects serious adversity between the parties.
Similar to Aspirational Standard E, Section 5, the ACTEC Commentary on ABA Model Rule 1.14 advises that “[a] lawyer may properly suggest that a competent client consider executing a letter or other document that would authorize the lawyer to communicate to designated parties (e.g., family members, health care providers, a court) concerns that the lawyer might have regarding the client’s capacity.”
The ACTEC Commentaries explore an issue that is not directly addressed in Standard E of the Aspirational Standards. That issue is whether and to what extent exceptions to the confidentiality rule exist. The ACTEC Commentary on ABA Model Rule 1.6 explores those exceptions, not only as they relate to clients with diminished capacity but also to clients who have capacity. The Commentary provides:
Protection Against Reasonably Certain Death or Substantial Bodily Harm. A lawyer may reveal information insofar as the lawyer believes it reasonably necessary to prevent reasonably certain death or substantial bodily harm. Estate planning clients may disclose to their lawyer that they intend to do injury to themselves: they may be engaged in estate planning, for example, because they are planning suicide and they may disclose this. Such a client may be of diminished capacity. See MRPC 1.14 (Client with Diminished Capacity). But one need not be of diminished capacity to contemplate suicide, for example, if one has contracted a debilitating disease which has radically reduced one’s quality of life. An estate planner who encounters this situation is not required to disclose the plan under the model rules, and may well conclude that it is the client’s well-considered and rational decision. But a lawyer may nonetheless reasonably conclude, given the specific facts of a client’s situation, that the client should be prevented from carrying through on the plan. The model rule entrusts to the lawyer discretion to make this very difficult decision.
The ACTEC Commentary on Rule 1.6 also discusses the exception in some states’ versions of Rule 1.6 that allows the attorney to disclose information in order to prevent substantial financial harm:
Whether a given financial loss to a beneficiary is a “substantial injury” will depend on the facts and circumstances. A relatively small loss could constitute a substantial injury to a needy beneficiary. Likewise, a relatively small loss to numerous beneficiaries could constitute a substantial injury. In determining whether a particular loss constitutes a “substantial injury,” lawyers should consider the amount of the loss involved, the situation of the beneficiary, and the non-economic impact the fiduciary’s misconduct had or could have on the beneficiary.
The Comment on Aspirational Standard E, Section 6, discusses the dilemma an attorney faces when the client appears to be the victim of some type of elder abuse. Recognizing the rising prevalence of elder abuse in the United States, the fifth edition of the ACTEC Commentaries added this paragraph to the Commentary on ABA Model Rule 1.14:
Reporting Elder Abuse. Elder abuse has been labeled “the crime of the 21st century,” Kristin Lewis, The Crime of the 21st Century: Elder Financial Abuse, PROB. & PROP. Vol. 28 No. 4 (Jul./Aug. 2014), and the federal and state governments are responding with legislation and programs to prevent and penalize the abuse. The role and obligations of lawyers with respect to elder abuse varies significantly among the states. Some states have made lawyers mandatory reporters of elder abuse. See, e.g., Tex. Hum. Res. Code § 48.051(a)–(c) (2013) (Texas); Miss. Code Ann. § 43-47-7(1)(a)(i) (2010) (Mississippi); Ohio Rev. Code Ann. § 5101.61(A) (2010) (Ohio); A.R.S. § 46-454(B) (2009) (Arizona); Mont. Code Ann. § 52-3-811 (2003) (Montana) (exception where attorney-client privilege applies to information). Other states have broad mandatory reporting laws that do not exclude lawyers. See, e.g., Del. Code Ann. Tit. 31, § 3910. The exception to the duty of confidentiality in MRPC 1.6(b)(6), which allows disclosure to comply with other law, should apply, but disclosure would be limited to what the lawyer reasonably believes is necessary to comply. In states where there is no mandatory reporting duty of lawyers, a lawyer’s ability to report elder abuse where MRPC 1.6 may restrict disclosure of confidentiality would be governed by MRPC 1.14 in addition to any other exception to MRPC 1.6 (such as when there is a risk of death or substantial bodily harm). In order to rely on MRPC 1.14 to disclose confidential information to report elder abuse, the lawyer must first determine that the client has diminished capacity. If the lawyer consults with other professionals on that issue, the lawyer must be aware of the potential mandatory reporting duties of such professional and whether such consultation will result in reporting that the client opposes or that would create undesirable disruptions in the client’s living situation. The lawyer is also required under MRPC 1.14 to gather sufficient information before concluding that reporting is necessary to protect the client. See NH Ethics Committee Advisory Opinion #2014-15/5 (The Lawyer’s Authority to Disclose Confidential Client Information to Protect a Client from Elder Abuse or Other Threats of Substantial Bodily Harm). In cases where the scope of representation has been limited pursuant to Rule 1.2, the limitation of scope does not limit the lawyer’s obligation or discretion to address signs of abuse or exploitation (consistent with Rules 1.14 and 1.6 and state elder abuse law) in any aspect of the client’s affairs of which the lawyer becomes aware, even if beyond the agreed-upon scope of representation.
F. Competent and Diligent Representation
Aspirational Standard F, Competent and Diligent Representation, Section 1, urges the elder and special needs law attorney to become educated in the wide range of professional skills that are unique to and required in an elder and special needs law practice. The ACTEC Commentaries do not include this mandate, but the Commentary on ABA Model Rule 1.1 reflects the discussion in the third paragraph of the Comment on Aspirational Standard F, Section 1, about being candid with the client about the level of the lawyer’s competence and any need for additional education. The ACTEC Commentary adds that the lawyer’s level of competence and the need for further education “should be taken into account in determining the amount of the lawyer’s fee.”
Aspirational Standard F, Section 2, describes the need for special diligence in the event that the client is facing imminent death. The ACTEC Commentary on ABA Model Rule 1.3 makes a similar observation:
Many clients engaged in estate planning are elderly or are facing medical emergencies. There is thus an enhanced risk that the client might die or otherwise become incapable of completing an estate plan if the estate planner takes more time than is reasonable under the circumstances to do the work requested. In such cases the client may be harmed, and intended beneficiaries may not receive the benefits the client intended them to have.
The mandate in Aspirational Standard F, Section 3, to pursue education in the subject areas related to elder and special needs law does not appear in the ACTEC Commentaries. However, the Commentary on ABA Model Rule 1.1 does reflect the suggestion in the Comment on Aspirational Standard F, Section 3, that “[t]o stay current, the attorney should incorporate relevant technology into his or her practice.” The ACTEC Commentary provides:
Competence with Technology. A lawyer who uses technology to transmit or store client documents or communicates electronically with a client regarding the drafting of documents must be aware of the potential effects of such use of technology on client confidentiality and preservation of client information. A lawyer must stay reasonably informed about developments in technology used in client communications and document storage, including improvements, discoveries of risks and best practices.
The concept in Aspirational Standard F, Section 4, which focuses on training staff members on how to best serve clients who are elders or who have special needs, is not reflected in the ACTEC Commentaries.
G. Client Capacity
Aspirational Standard G, Client Capacity, acknowledges the difficult balance that an elder and special needs law attorney must maintain between guarding a client’s autonomy and protecting a vulnerable client. The ACTEC Commentary on ABA Model Rule 1.14 reflects the emphasis in Aspirational Standard G, Section 1, on respecting the right to self-determination and confidentiality even if the client has diminished capacity. The ACTEC Commentary states:
If a legal representative has been appointed for the client, the lawyer should ordinarily look to the representative to make decisions on behalf of the client. The lawyer, however, should as far as possible accord the represented person the status of client, particularly in maintaining communication with the represented person.
The Comment on Aspirational Standard G, Section 2, lists factors the elder and special needs law attorney should consider in determining whether a client has the appropriate legal capacity to perform the task at issue. The ACTEC Commentary on ABA Model Rule 1.14 contains a similar list. The Commentary states:
Determining Extent of Diminished Capacity. In determining whether a client’s capacity is diminished, a lawyer may consider the client’s overall circumstances and abilities, including the client’s ability to express the reasons leading to a decision, the ability to understand the consequences of a decision, the substantive appropriateness of a decision, and the extent to which a decision is consistent with the client’s values, long-term goals and commitments. In appropriate circumstances, the lawyer may seek the assistance of a qualified professional.
The interviewing techniques and strategies listed in Aspirational Standard G, Section 3, to maximize the client’s ability to understand and participate in the representation are not covered in the ACTEC Commentaries.
The Comments on Aspirational Standard G, Sections 4 and 5, set out the limitations a lawyer has and the complications that can result in deciding to take protective action on behalf of a client. Taking protective action for a client is also discussed in the ACTEC Commentary on Rule 1.14:
Based on the interaction of subsections (b) and (c) of MRPC 1.14, a lawyer has implied authority to make disclosures of otherwise confidential information and take protective actions when there is a risk of substantial harm to the client and the lawyer reasonably believes that the client is unable because of diminished capacity, either temporary or permanent, to protect him or herself. Under those circumstances, the lawyer may consult with individuals or entities that may be able to assist the client, including family members, trusted friends and other advisors. However, in deciding whether others should be consulted, the lawyer should also consider the client’s wishes, the impact of the lawyer’s actions on potential challenges to the client’s estate plan, and the impact on the lawyer’s ability to maintain the client’s confidential information. In determining whether to act and in determining what action to take on behalf of a client, the lawyer should consider the impact a particular course of action could have on the client, including the client’s right to privacy and the client’s physical, mental and emotional well-being. In appropriate cases, the lawyer may seek the appointment of a guardian ad litem, conservator or guardian or take other protective action.
Aspirational Standard G, Section 6, reflects the implied authority granted under ABA Model Rules 1.6 and 1.14 for a lawyer to reveal confidential client information to the extent necessary to protect the client. The ACTEC Commentary on Rule 1.6 describes this authority as follows:
As provided in MRPC 1.14 (Client with Diminished Capacity), a lawyer for a client who has, or reasonably appears to have, diminished capacity is authorized to take reasonable steps to protect the interests of the client, including the disclosure, where appropriate and not prohibited by state law or ethical rule, of otherwise confidential information.
The ACTEC Commentary on Rule 1.14 contains a similar discussion:
Disclosure of Information. As amended in 2002, MRPC 1.14(c) makes clear that a lawyer is impliedly authorized to disclose client confidences “but only to the extent reasonably necessary to protect the client’s interests.” This is so “even when the client directs the lawyer to the contrary.” MRPC 1.14, cmt [8]. But before making such protective disclosures, it is incumbent on the lawyer to assess whether the person or entity consulted will act adversely to the client’s interests.
Aspirational Standard G, Section 7, authorizes an elder and special needs law attorney to seek a guardianship or a conservatorship for his or her client but only when no other viable alternatives exist. The ACTEC Commentary on ABA Model Rule 1.6 expands upon the somewhat limited Comment on Aspirational Standard G, Section 7. The ACTEC Commentary provides:
As provided in MRPC 1.14 (Client with Diminished Capacity), a lawyer for a client who has, or reasonably appears to have, diminished capacity is authorized to take reasonable steps to protect the interests of the client, including the disclosure, where appropriate and not prohibited by state law or ethical rule, of otherwise confidential information. See ACTEC Commentary on MRPC 1.14 (Client with Diminished Capacity), ABA Inf. Op. 89-1530 (1989), and Restatement (Third) of the Law Governing Lawyers, §§24, 51 (2000). In such cases the lawyer may either initiate a guardianship or other protective proceeding or consult with diagnosticians and others regarding the client’s condition, or both. In disclosing confidential information under these circumstances, the lawyer may disclose only that information necessary to protect the client’s interests [MRPC 1.14(c) (Client with Diminished Capacity)].
The ACTEC Commentary on ABA Model Rule 1.7 expands further on the potential that seeking a guardianship for a client may be a conflict of interest:
As provided by MRPC 1.14 (Client with Diminished Capacity), a lawyer may take reasonable steps to protect the interests of a client the lawyer reasonably believes to be suffering from diminished capacity, including the initiation of protective proceedings. See ACTEC Commentary on MRPC 1.14 (Client with Diminished Capacity). Doing so may create a conflict of interest between the lawyer and the client. The client might, for example, oppose the protective action being taken by the lawyer and consider it a breach of the duty of loyalty. In such a circumstance, the lawyer is entitled to continue to take protective action, but where possible, should call the court’s attention to the client’s opposition and ask that separate counsel be provided to represent the client’s stated position if the client has not already retained such counsel. A lawyer who is retained on behalf of the client to resist the institution of a protective action may not take positions that are contrary to the client’s position or make disclosures contrary to MRPC 1.6 (Confidentiality of Information).
H. Communication and Advocacy
The NAELA Aspirational Standards and the ACTEC Commentaries both recognize that effective communication is a vital component of the attorney-client relationship. Aspirational Standard H, Communication and Advocacy, Section 2, notes that “[m]aintaining direct communication with the client is a critical component of effective representation, particularly when the client is making major life decisions that may alter the client’s options for long-term services and supports.” The ACTEC Commentary on ABA Model Rule 1.4 states that
“[c]ommunication between the lawyer and client is one of the most important ingredients of an effective lawyer-client relationship.”
NAELA Aspirational Standard H, Section 1, reflects the fact that many clients of elder and special needs law attorneys are challenged in their ability to communicate effectively with their lawyers and thus emphasizes the need to take special care to remove whatever barriers to effective communication exist. Because many clients of estate planning lawyers are not similarly challenged, the ACTEC Commentary on Rule 1.4 takes a broader approach to communication, stating:
The nature and extent of the content of communications by the lawyer to the client will be affected by numerous factors, including the age, competence and experience of the client, the amount involved, the complexity of the matter, cost factors and other relevant considerations.
Both the NAELA Aspirational Standards and the ACTEC Commentaries emphasize the importance of the lawyer communicating directly with the client, even if others are purporting to communicate information on the client’s behalf. This emphasis appears in Aspirational Standard H, Section 2, as well as in the ACTEC Commentary on ABA Model Rule 1.4. The ACTEC Commentary provides:
In order to obtain sufficient information and direction from a client, and to explain a matter to a client sufficiently for the client to make informed decisions, a lawyer should meet personally with the client at the outset of a representation. A lawyer should not agree to do estate planning for one person when the lawyer’s only communication has been with another who purports to be acting as an intermediary for the client. If circumstances prevent a lawyer from meeting personally with the client, the lawyer should communicate as directly as possible with the client. In either case the elements of the engagement should be confirmed in an engagement letter.
Effective personal communication is necessary in order to ensure that any estate planning documents that are prepared by a lawyer are consistent with the client’s intentions. Because of the necessity that estate planning documents reflect the intentions of the person who executes them, a lawyer should not provide estate planning documents to persons who may execute them without receiving legal advice. Accordingly, a lawyer should be hesitant to provide samples of estate planning documents that might be executed by lay persons without legal advice.
Both the NAELA Aspirational Standards and the ACTEC Commentaries recognize that there are many situations in which a client will need to give “informed consent” about complex issues. Aspirational Standard H, Section 3, advises the elder and special needs law attorney to explain all appropriate options to the client and help the client weigh those options. The ACTEC Commentary on ABA Model Rule 1.0 states that an estate planning lawyer “should at the outset provide the client with information sufficient to allow the client to understand the matter.”
Aspirational Standard H, Section 4, directs elder and special needs law attorneys to “zealously advocate” for their clients but recognizes that there are situations in which protective action may be necessary or appropriate. As noted in Section IV(G) of this article, the ACTEC Commentary on ABA Model Rule 1.14 discusses this same tension.
The topic of long-term supports and services in Aspirational Standard H, Section 5, is not discussed in the ACTEC Commentaries because this topic is unique to the elder and special needs law practice.
I. Marketing and Advertising
Lawyer communications in the form of marketing and advertising is an important topic that is dealt with extensively by both the NAELA Aspirational Standards and the ACTEC Commentaries. The Aspirational Standards include a suggestion that is more reflective of the unique nature of the elder and special needs law attorney’s clients, but both the Standards and the Commentaries emphasize clarity and honesty in the attorney’s communication endeavors.
Aspirational Standard I, Marketing and Advertising, Section 1, suggests using marketing and advertising as a means of educating the public about elder and special needs law. The ACTEC Commentaries do not include such a suggestion.
Both Aspirational Standard I, Section 2, and the ACTEC Commentary on ABA Model Rule 7.1 (a 2016 addition to the Commentaries) discuss the fact that in today’s world, lawyers advertise in a variety of ways. The ACTEC Commentary on Rule 7.1 observes:
But in the modern age, lawyers communicate about themselves or their services in a variety of very different kinds of settings: (a) during meetings with prospective, current or former clients; (b) statements on a lawyer’s own website or the website of another; (c) brochures; (d) mailings; (e) ads run in bar journals or newspapers or on websites or radio or TV; (f) professional networking or rating websites; (g) in educational settings; (h) during media interviews, guest appearance[s], or columns; (i) blogs and comments in web-based discussions and/or (j) at service organization or other professional meetings.
Aspirational Standard I, Section 3, continues the theme of honesty in communications. The ACTEC Commentary on ABA Model Rule 7.1 does not directly address the use of terms such as “special discounts” or panic-inducing tactics.
Aspirational Standard I, Section 4, focuses on marketing communications that compare a lawyer’s expertise with that of other lawyers. The ACTEC Commentary on ABA Model Rule 7.1 addresses the issue of whether an estate planning lawyer can advertise herself or himself as a “specialist.” The Commentary notes that it is imperative to check one’s own jurisdiction because the jurisdictions vary greatly as to the degree to which a lawyer can claim to be “certified” or a “specialist.”
Aspirational Standard I, Section 5, addresses the use of endorsements or testimonials. The ACTEC Commentary on ABA Model Rule 7.1 contains a more expansive discussion of this issue:
The prohibition on misleading communications presents particular challenges in the context of internet networking websites that contain information about a lawyer. Some of the information presented about a lawyer may not have been generated by the lawyer but may, instead, have been collected from other sources. Third parties, for example, may be permitted to post endorsements without the endorsements (and statements contained therein) having been approved by the lawyer. Some of these endorsements or statements may communicate false or misleading information about the lawyer. Insofar as the lawyer has not participated in making such misleading communications, it should not violate MRPC 7.1. But if the lawyer has actively “claimed” his or her profile, including misleading information posted by others, or has in other ways actively participated in what has been posted about the lawyer, this may present a problem. In some cases, lawyers participating in such websites can control what is said about them by, for example, hiding endorsements. But in other cases, they cannot. Trust and estate lawyers need to avoid playing any kind of active role in a site that is posting misleading information about the lawyer.
J. Nonlegal Services
Both the NAELA Aspirational Standards and the ACTEC Commentaries recognize that a client may need a variety of nonlegal services in order to accomplish his or her goals. However, the types of nonlegal professionals and providers to whom an estate planning attorney may turn vary from those listed for elder and special needs law attorneys in Aspirational Standard J, Nonlegal Services, Section 1. The ACTEC Commentary on ABA Model Rule 5.3 (a 2016 addition to the Commentaries) focuses primarily on outside experts who provide property-
related services (“outside accounting firms, investigators, appraisers, estate liquidators, business managers, real estate managers, copying services and data storage providers”). Rather than include a list of nonlawyer professionals as does Aspirational Standard J, Section 1, the ACTEC Commentary on ABA Model Rule 5.3 states merely that “[o]ccasionally a trust and estate lawyer will need to retain a doctor to assess the competency of a client or to opine on the competency of a decedent in the event of a will contest.” Again, this reflects the different nature of the clients who are the focus of the two different practices.
Both the NAELA Aspirational Standards and the ACTEC Commentaries contemplate that nonlegal services may be delivered either by in-house employees or by independent contractors. However, whereas an elder and special needs law attorney’s in-house employees, such as geriatric care managers, may be individuals who specialize in related services, the ACTEC Commentary on ABA Model Rule 5.3 seems to limit these in-house employees to paralegals and secretaries. The ACTEC Commentary on Rule 5.3 focuses on what tasks may be “delegated” and what supervision should be exercised in such cases.
Both Aspirational Standard J, Section 3, and the ACTEC Commentary on ABA Model Rule 5.3 recognize the importance of ensuring that the client’s rights are respected in the course of the delivery of nonlegal services. The ACTEC Commentary places special emphasis on confidentiality issues:
If the nonlawyer who is to be retained is an independent contractor who will not work on site with the lawyer, it is even more important that the lawyer take reasonable steps to ascertain that the working conditions of the nonlawyer provide the level of security necessary to protect client confidences and that they provide an appropriate mechanism for protecting against conflicts of interest. This kind of due diligence is particularly important if the nonlawyer being retained is a business entity with multiple nonlawyer employees who are working on matters not only for one lawyer or law firm, but for multiple law firms. Some nonlawyer firms of this sort are located in foreign countries where the ethical responsibilities of lawyers and nonlawyers may not be monitored as closely as American law and the rules of professional conduct require. The retaining lawyer has a duty at the outset to make sure that such outside nonlawyer firms will conduct themselves in a way compatible with the lawyer’s professional duties.
The ACTEC Commentary on Rule 5.3 also contains a pointed caution to estate planning lawyers who use legal forms that are prepared by outside vendors:
Use of Estate Planning Form Systems and Packages Prepared by Outside Nonlawyers. It is a common practice for estate planners to use form packages and systems prepared by outside vendors. Some of these form packages are created by lawyers licensed in other jurisdictions; some of them are prepared by unlicensed lawyers working for nonlaw companies; and some of them may be prepared by persons without any formal legal training whatsoever. A lawyer has a duty to use such form systems competently, and so must assess and take responsibility for the adequacy of the forms for a given client’s needs. See MRPC 1.1. As long as the lawyer using the forms has not become directly associated with the nonlawyers selling such systems, MRPC 5.3 would not apply. But some nonlaw vendors enter into an active association with the lawyers such that the nonlaw vendors meet with clients, draft estate plans, and then ask the lawyer to review the final product. These situations are fraught with risk for clients and for the lawyer entering into the arrangement. The requirements of MRPC 5.3 do apply where the association is active in this way. The lawyer must take special care to assess the business practices of such nonlaw companies and to supervise such nonlaw participants to make sure that they are behaving in a way that comports with the lawyer’s professional duties. The lawyer must also review with care the work product before approving it for a particular client.
K. Pro Bono Legal Representation and Public Service
Aspirational Standard K, Pro Bono Legal Representation and Public Service, addresses the elder and special needs law attorney’s responsibility to provide pro bono legal representation to elderly individuals and individuals with special needs who cannot afford such representation and to participate actively in law reform efforts that are directed at improving the law impacting these individuals’ needs. The ACTEC Commentaries do not address these issues directly. However, in order to be elected as a Fellow of ACTEC, the ACTEC Bylaws provide, among other things, that “the candidate must have contributed substantially to the field of trust and estate law by lecturing, writing, teaching, or being involved in bar activities or in the enactment of significant state or federal trust and estate legislation.”
V. Conclusion
Estate planning attorneys and elder and special needs law attorneys share many ethical concerns in that both types of practices involve important life-changing decisions for clients who most often are human beings rather than entities. Both types of practices focus not only on the appropriate management of a client’s property but also on the client’s safety and autonomy. It is not surprising, therefore, that the NAELA Aspirational Standards and the ACTEC Commentaries reflect each other in so many ways. Estate planning lawyers should read and study the Aspirational Standards, and elder and special needs law attorneys should read and study the ACTEC Commentaries. Both documents reflect the collective wisdom of lawyers whose goal is to raise the level of professional ethics and responsibility in both the estate planning and elder and special needs areas of law.