Ethics Opinion 99-03 deals with a conflict of interest between a mother and daughter. The attorney represented the mother in the preparation of a will. After the attorney prepared the will but before the mother signed the will, he received a telephone call from the daughter who said that the mother wanted a power of attorney naming the daughter as agent and also wanted to deed certain property to the daughter. The lawyer prepared those documents and the daughter retrieved them from the office and paid the lawyer for his services from her mother’s checking account. The power of attorney and deed were apparently signed by the mother and returned to the lawyer. Before the lawyer recorded the deed, he received a call from the mother saying that she was revoking the power of attorney and did not want the deed recorded. The attorney wrote a letter to both mother and daughter saying that he was “in the middle of both” and stated that each should engage their own lawyer to resolve the matter. He heard nothing since that letter and wanted to know what obligation he has regarding either mother or daughter.
The Committee determined that “based on the facts as you presented them” the mother continued to be the client and the daughter was simply an agent for the mother. Unless the lawyer determined that the mother no longer enjoyed competence, the lawyer was obligated to take his instructions from the mother. The lawyer needs to follow-up with the mother to see how to handle that.
Identification of the actual client was also pivotal in Ethics Opinion 92-23. There, an attorney represented an individual in her individual capacity. Later, the client was appointed personal representative of an estate and she wanted to sell estate property to herself. After her appointment as personal representative the attorney represented the client in that capacity. The analysis was based on treating the individual as the former client of the attorney and the personal representative – in her fiduciary capacity – as the current client. Under these circumstances, “the attorney may have an ethical duty to advise the client acting as personal representative of the estate of her legal obligations as a personal representative, which obligations may include a fiduciary obligation to disclose fully to all beneficiaries of the estate any self-dealing between herself individually and as personal representative of the estate.”
An attorney should not enter into an arrangement whereby a financial advisor pays the attorney to provide a client estate planning services. In Ethics Opinion 04-11, such an arrangement was seen as necessarily creating a conflict of interest and it would involve an impermissible fee-sharing arrangement with a non-lawyer because such payments would come from the non-lawyer’s commissions.
