5 Ethical Blunders of Attorneys

I may have missed this, however, could you tell me in a probate proceeding where you have 2 beneficiaries who are joint executors of a will. If one of the beneficiaries tells the attorney for the will that he does not want the attorney to do any work on the case, what is the attorney's obligation to continue with the proceeding.

I did not cover specially probate and executors in any of my courses, that I recall. Here you would have a potential conflict of interest that would need to be reviewed and resolved. This is hard to give a definitive response because it depends on if decisions have to be made unanimously or other factors. Thanks, Cari

What ethical considerations must a lawyer account for when drafting a plain vanilla durable power of attorney and health proxy for a family friend in a jurisdiction where the attorney is not licensed? The lawyer made it clear that he is not giving legal advice.

The primary ethical consideration is the potential unauthorized practice of law under Rule 5.5. The fact that the lawyer makes clear that he or she is “not giving legal advice” does not necessarily eliminate that concern. Ethics rules generally look to the substance of what the lawyer is doing rather than how the lawyer characterizes the assistance. Drafting a durable power of attorney or health care proxy for a particular individual can constitute the practice of law because the lawyer may be selecting or preparing documents intended to create legal rights under the laws of that jurisdiction. These documents can also have state-specific requirements regarding their language, scope, execution, witnesses, notarization, and effectiveness. The lawyer should therefore determine whether the assistance is permitted under the jurisdiction’s rules governing temporary or multijurisdictional practice. There is not a general exception simply because the documents are “plain vanilla,” the work is being done without charge, or the individual is a family friend. Competence under Rule 1.1 is also a consideration because the lawyer needs to understand the applicable jurisdiction’s substantive and execution requirements before preparing the documents. It is also important to remember that an attorney-client or prospective-client relationship can arise based on the circumstances and the individual's reasonable understanding of the relationship, notwithstanding a statement that the lawyer is not providing legal advice. Ultimately, the safest course when preparing individualized estate-planning or health-care documents governed by the law of a jurisdiction in which the lawyer is not admitted is to determine whether the jurisdiction permits the particular assistance under its version of Rule 5.5 and applicable UPL law. If it does not, the lawyer should refer the individual to locally licensed counsel rather than relying on a disclaimer that no legal advice is being provided.