Rules of Conduct – An Estates’ Perspective: An Introduction to the ACTEC Model Rules of Conduct and the Commentaries- Part II
In addition to the basic themes of the Commentaries (see our June 9, 2006 blog), they also reflect the role that the trusts and estates lawyer has traditionally played as the lawyer for members of the family. In that role, a trusts and estates lawyer frequently represents the fiduciary of a Trust or an Estate and one or more of the beneficiaries.
In drafting the Commentaries, the authors have attempted to express views that are consistent with the spirit of the MRPC (Model Rules of Professional Conduct) as evidenced in the following passage:
"The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and the law itself."
The editors note (at page 1 of the Commentaries) that a goal of the Commentaries is to encourage a full discussion between a lawyer and a client as to the scope and the cost of the representation. Furthermore, the duties of trusts and estates lawyers are also carefully considered and described. In the U.S. jurisdictions, many of the parameters of the duties of estates and trusts lawyers are set out by opinions rendered in malpractice cases, which provide some guidance regarding some of the ethical duties of the lawyer as well.
Complicating this issue, however, is the fact that in negligence and malpractice actions, the legal concepts upon which they are based vary from jurisdiction to jurisdiction and, therefore, the Commentaries themselves assist in walking through some of these difficult issues.
The editor’s note at the outset of the Commentaries uses an illustration from the decision of Goldberg v. Frye (266 Cal. Rpt. 483 (Cal. App. 1990)) where, in a negligence action brought by the beneficiaries against the lawyer, the California Court of Appeal stated that the lawyer owed no duty to the beneficiaries of the Estate. However, in contrast, other appellant courts have reached an entirely opposite conclusion, including courts in California.
Fortunately, in Canada, this particular issue is well established and again, fortunately, across the province, the issues with regard to estates and trust law are relatively similar. We say that noting that the British Columbia courts do have some considerable differences in how they deal with estates matters as, for example, they have the Wills Variations Act, which is not presently in other provincial jurisdictions. Furthermore, some of the other provincial jurisdictions deal with the issue of due execution differently, as some provide for mandatory and some provide for substantial compliance to the two witness requirement.
In any event, this illustrates the ongoing problem that, even in Canada, various jurisdictions treat various estate issues differently – we just need to be mindful of this substantive reality. More on the Commentaries and a comparison to the Canadian Rules will follow in future blogs.
All the best, Suzana and Ian. ——–