ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 1.3
Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.
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ACTEC COMMENTARY ON MRPC 1.3
Timetable. Whether the representation relates to inter vivos estate planning or the administration of a fiduciary estate, it is usually desirable, early in the representation, for the lawyer and client to establish a timetable for completion of various tasks. Insofar as consistent with providing the client with competent representation, the lawyer should adhere to the established schedule and inform the client of any revisions that are required, whether attributable to the lawyer or to circumstances beyond the lawyer's control. The client or others may be seriously disadvantaged if the lawyer fails, within a reasonable time, to provide the client with the agreed legal services. In such cases the client may be harmed and intended beneficiaries may not receive the benefits the client intended them to have.
Planning the Administration of a Fiduciary Estate. The lawyer and the fiduciary should plan the administration of an estate or trust in light of the fiduciary's obligations to the courts, tax authorities, creditors and beneficiaries. The lawyer and fiduciary may subsequently decide to accelerate or delay some planned payments or distributions in order to improve the tax position of the fiduciary estate or of its beneficiaries. The lawyer's obligation to be diligent includes the duty to advise the fiduciary competently regarding the tax and nontax impact of sales, distributions and other administrative actions. In connection with the administration of an estate or trust it is appropriate for the lawyer and the fiduciary to consider the circumstances of the beneficiaries and to communicate with them regarding the fiduciary estate. See ACTEC Commentary on MRPC 2.1 (Advisor). However, the lawyer and the fiduciary should adhere to their general duties, including the duty to act impartially with respect to the beneficiaries.
Time Constraints Imposed by Client. The lawyer should not agree to the imposition of time limits that may prevent the lawyer from consulting fully with the client or giving a matter the time and attention it should receive. The lawyer should caution the client regarding the risks that arise if a matter is pursued on an abbreviated time schedule that deprives the lawyer of the opportunity fully to fulfill the lawyer's role. A lawyer who agrees to pursue a matter on such a schedule acts properly if adherence to the agreed schedule is reasonable under the circumstances.
Planning for Disability or Death of Lawyer. As stated in ABA Formal Opinion 92-369 (1992), "it is fairly to be inferred from the pertinent rules that lawyers should make arrangements for their client files to be maintained in the event of their own death. Such a plan should at a minimum include the designation of another lawyer who would have authority to look over the sole practitioner's files and make determinations as to which files needed immediate attention, and provide for notification to the sole practitioner's clients of their lawyer's death." The obligation to assure that clients are represented on an uninterrupted basis also extends to lawyers who practice in firms.
ANNOTATIONS
(Refer to Caveat)
Cases (See also the Annotations following the ACTEC Commentary on MRPC 1.1):
California:
Radovich v. Locke-Paddon, 41 Cal. Rptr. 2d 573 (Cal. App. 1995). The court held that the beneficiary of an un-executed will must prove facts that "manifest a commitment by the decedent to benefit" the beneficiary in order for the decedent's lawyer to owe any duty to that beneficiary. The appellate court upheld summary judgment for the lawyer in a suit brought by the deceased client's husband. The lawyer had met with the client in June to discuss the preparation of a new will that would increase the provisions to be made for her husband. Although the lawyer knew the client was terminally ill, the lawyer did not send a draft of the new will to the client until October and did not otherwise follow-up on the matter. The client died in December without having executed a new will. The court found that the lawyer did not have a duty, after sending the draft will to the client, to inquire whether she had any questions or wanted further assistance.
Colorado:
People v. James, 502 P.2d 1189 (Colo. 1972). James is a disciplinary case in which a lawyer who had previously been disciplined for dereliction of duty to clients was disbarred for "failure to prepare a will for at least eight months after [being] employed to do so" by an aged and infirm client.
People v. Van Nocker, 490 P.2d 697 (Colo. 1971). In this disciplinary case the court held that "crass irresponsibility or callous indifference to a client's affairs is inexcusable under any circumstances". The lawyer who failed to file tax returns on two occasions for the same client and was not timely in sending a will to the client was suspended for an indefinite period.
Connecticut:
Krawczyk v. Stingle, 543 A.2d 733 (Conn. 1988). In this malpractice action the attorneys, engaged by the client to prepare documents for the disposition of his estate, were sued for their allegedly negligent failure to provide the documents to the client for execution prior to the client's death. In reversing a trial court judgment against the attorneys in favor of the plaintiffs, the intended beneficiaries under the unexecuted documents, the Supreme Court of Connecticut observed:
We conclude that the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer's duty of undivided loyalty to the client. . . .
A central dimension of the attorney-client relationship is the attorney's duty of "[e]ntire devotion to the interest of the client." [Citations omitted.] This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney's delay, the testator did not have an opportunity to execute estate planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney's primary responsibility to ensure that the proposed estate plan effectuates the client's wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. . . .
543 A.2d at 735.
Minnesota:
In re Discipline of Helder, 396 N.W.2d 559 (Minn. 1986). In this case the court upheld the indefinite suspension, with right to petition after six months, of a lawyer who failed to communicate with a client who had repeatedly requested changes to the client's will for over six months, then withdrew as counsel, and was guilty of similar dilatory acts in defense of contract claim for another client.
In re Discipline of O'Brien, 362 N.W.2d 307 (Minn. 1985). This decision upheld the indefinite suspension, with right to petition for reinstatement after two years, of a lawyer with a chemical dependency, who failed to complete a will and return retainer, and similar actions with respect to two other cases. The lawyer had also practiced with a license suspended for failure to pay registration fees.
New York:
Matter of Frank T. D'Onofrio, Jr., 618 N.Y.S.2d 829 (App. Div. 1994). In this action a lawyer was censured for multiple offenses including a failure to timely file an inventory of the estate and a New York state estate tax return as a result of which the estate incurred penalties and interest.
Victor v. Goldman, 344 N.Y.S.2d 672 (Sup. Ct. 1973), aff'd mem., 351 N.Y.S.2d 956 (App. Div. 1974). The court here held that the absence of privity prevented the decedent's intended beneficiaries from bringing an action against the lawyer who allegedly failed to draw a new will for a client prior to her death.
North Dakota:
In re Disciplinary Action Against Garcia, 366 N.W.2d 482 (N.D. 1985). In this case the court upheld a 90 day suspension of a lawyer for misconduct in conversion of a client's funds, neglect, misrepresentation, and deceit. (The lawyer failed to prepare a will or return retainer and lost file for over three years.) The lawyer had a prior disciplinary record.
Ohio:
Office of Disciplinary Counsel v. Mauk, 512 N.E.2d 670 (Ohio 1987). A lawyer was suspended indefinitely for unauthorized practice of law, failure to prepare will or communicate with client, followed by lawyer's withdrawal from practice, claiming Agent Orange disorder.
Pennsylvania:
Gregg v. Lindsay, 649 A.2d 935 (Pa. Super. 1994). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1.
Texas:
Berry v. Dodson, Nunley & Taylor, 717 S.W.2d 716 (Tex. App. 1986), writ dismissed by agreement, 729 S.W.2d 690 (Tex. 1987). In this case the lack of privity between the lawyer and the decedent's intended beneficiaries barred them from bringing a negligence action against the lawyer for failing to prepare a new will in accordance with decedent's instructions prior to death.
Vermont:
Professional Conduct Board Decision No. 25 (Vt. 1992). In this case the respondent lawyer, who took over as personal representative for an estate in 1982 and failed to take any action to close the estate until after he was required to appear before the probate court following an heir's complaint over the delay in 1989, was given a private admonition for his misconduct. The Professional Conduct Board observed:
The Board is concerned with the number of neglect cases which have come to its attention, particularly in probate practice. Given the pressures and the volume of the modern law office, it is easy for some client matters to "slip through the cracks." It is the responsibility of every lawyer to ensure that client matters are not neglected. The beneficiaries of estates should not have to tolerate inactivity nor have to go to extraordinary lengths just to secure the attention of counsel.
Wisconsin:
In re Disciplinary Proceedings Against Haberman, 376 N.W.2d 852 (Wis. 1985). An attorney was suspended for two years for neglecting seven estates in which he served as attorney or personal representative, engaging in conflicts of interest in one, and failing to cooperate with the disciplinary board.
In re Disciplinary Proceedings Against Meuller, 377 N.W.2d 158 (Wis. 1985). This decision upheld a two year suspension of a lawyer who neglected estate and family matters of clients and who failed to respond to numerous inquiries by disciplinary board.
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