ENGAGEMENT LETTERS: A GUIDE FOR PRACTITIONERS
INTRODUCTION
In October 1993, the American College of Trust and Estate Counsel ("ACTEC") adopted its Commentaries on the Model Rules of Professional Conduct ("ACTEC Commentaries"). The second edition of the ACTEC Commentaries was adopted in March 1995, and the third edition is being published simultaneously with this Guide. The ACTEC Commentaries were promulgated in response to the widely shared concern that the ethical rules governing the professional conduct of lawyers, as embodied by the Model Rules of Professional Conduct ("MRPC"), were being interpreted from a litigation and/or adversarial point of view, and not from the perspective of attorneys working in estate planning and trust and estate administration.
The ACTEC Commentaries were designed to be a compendium of the Model Rules as they pertain to estate planning and trust and estate administration practices, and to give "Aparticularized guidance" to ACTEC Fellows, trusts and estate lawyers generally, and others regarding the professional responsibilities of lawyers engaged in such practice. While they reflect a concerted effort to harmonize the "Ablack letter" restrictions of the MRPC (and Comments) with the ethical dictates of a generally non-adversarial and family oriented practice, the ACTEC Commentaries also promote the concepts that lawyers and clients should have relative freedom to write their own charter with respect to legal representation in the trusts and estates field, that representation of multiple clients whose interests may differ but are not necessarily adverse is often useful and desirable, and that many of the problems that might otherwise arise under the MRPC can be moderated or eliminated with full disclosure.
Since their promulgation, the ACTEC Commentaries have been widely accepted and used by law schools, courts, and practitioners. Engagement Letters: A Guide for Practitioners is an effort to produce what is hoped will be a useful practice tool for the practitioner who either chooses to or is required by applicable law to use engagement letters in situations that are routinely encountered in daily practice.
Each set of forms in each method of representation is preceded by a brief introduction. In addition, the introduction to each section of Engagement Letters: A Guide for Practitioners contains a cross-reference to the discussion in the third edition of the ACTEC Commentaries pertinent to the subject of that section. The practitioner is urged to refer to the ACTEC Commentaries for detailed discussion on specific or general areas of concern.
These forms are not intended to be used verbatim but are designed to deal with situations commonly faced in the trusts and estates practice. Practitioners who choose to use one or more of the letters should adapt them to suit the specific situation. Matters to be included are the scope of representation specifying the tasks to be undertaken and any limits to those tasks, the basis upon which fees will be determined, and issues relating to confidentiality and conflicts of interest. Conflicts of interest are of paramount importance if a lawyer undertakes representation of multiple clients in the same matter. Such representation should be undertaken only after analysis and resolution of all possible conflicts.
In using the forms, the order and manner in which issues are presented, the possible styles of representation offered to the clients, and the wording of the letter itself should be adapted by each attorney to suit the lawyer's own personality and practice. The forms generally are designed for use by the individual lawyer. While reference is made from time to time to the possibility that the lawyer may be in a firm and that representation or prior representation is or was had by the firm rather than the individual lawyer, care should be taken by the practitioner to ensure that the frame of reference is appropriate to that lawyer's practice environment.
The forms are not intended to replace the independent judgment of the practitioner and, of significant note, the forms are not tailored to specific state statutory or regulatory requirements. Accordingly, before their use, the forms should be carefully reviewed and modified to conform with applicable local requirements.
It is hoped that Engagement Letters: A Guide for Practitioners will be a useful practice tool and will be of assistance to the practitioner in dealing with the very real ethical issues encountered in the estate and trust lawyer's efforts to represent the interests of his or her clients dutifully and properly.
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