ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT

The American College of Trust and Estate Counsel

Third Edition, 1999

Neither the Model Rules of Professional Conduct (MRPC) nor the Comments to them provide sufficiently explicit guidance regarding the professional responsibilities of lawyers engaged in a trusts and estates practice. Recognizing the need to fill this gap, ACTEC has developed the following Commentaries on selected rules to provide some particularized guidance to ACTEC Fellows and others regarding their professional responsibilities. The Commentaries may also assist courts, ethics committees and others concerned with issues regarding the professional responsibility of trusts and estates lawyers. Although the Commentaries refer specifically to the MRPC, their content is also usually applicable to the Code of Professional Responsibility, which remains in effect in some states and, like the MRPC, does not provide sufficient guidance to trusts and estates lawyers. The Commentaries generally seek to identify various ways in which common problems can be dealt with, without expressly mandating or prohibiting particular conduct by trusts and estates lawyers. While the Commentaries are intended to provide general guidance, ACTEC recognizes and respects the wide variation in the rules, decisions, and ethics opinions adopted by the several jurisdictions with respect to many of these subjects.

TABLE OF CONTENTS

Reporter's Note
Reporter's Note, Second Edition
Reporter's Note, Third Edition
Introduction
Jurisdictions That Have Adopted the Model Rules of Professional Conduct
General Annotations
Caveat to Annotations

THE COMMENTARIES

MRPC 1.1: Competence

ACTEC Commentary on MRPC 1.1 Annotations
Disciplinary Cases
Malpractice Cases

MRPC 1.2: Scope of Representation

ACTEC Commentary on MRPC 1.2
Annotations Duties of Lawyer for Fiduciary to Beneficiaries
Cases
Ethics Opinions

MRPC 1.3: Diligence

ACTEC Commentary on MRPC 1.3
Annotations Cases

MRPC 1.4: Communication

ACTEC Commentary on MRPC 1.4
Annotations Enabling Estate Planning Client to Make Informed Decisions Ethical Consideration
Cases Extent of Continuing Duty to Client Cases Termination of Lawyer-Client Relationship Cases Articles

MRPC 1.5: Fees

ACTEC Commentary on MRPC 1.5
Annotations Percentage, Excessive and Reasonable Fees Cases
Statute
Ethics Opinions Contingent Fee Agreements Case
Ethics Opinion Payment of Fee by Person Other than Client Ethics Opinion Reduced Rates for Employees of Corporate Client Ethics Opinion Rebates, Discounts, Commissions or Referral Fees Cases
Ethics Opinions

MRPC 1.6: Confidentiality of Information

ACTEC Commentary on MRPC 1.6
Annotations Joint and Separate Clients Cases
Ethics Opinions Obligation Continues After Death Case
Ethics Opinions
Article Disabled Client Ethics Opinions
Articles Disclosures by Lawyer for Fiduciary Cases
Ethics Opinions Duty to Report Violations of Disciplinary Rules Ethics Opinions

MRPC 1.7: Conflict of Interest: General Rule

ACTEC Commentary on MRPC 1.7
Annotations Conflicts of Interest Cases
Ethics Opinions Joint Representation; Disclosures Ethics Opinions Joint Representation; Co-Fiduciaries Case
Ethics Opinions
Articles Appointment of Scrivener as Fiduciary Cases
Statutes
Ethics Opinions
Articles

MRPC 1.8: Conflict of Interest:

Prohibited Transactions
ACTEC Commentary on MRPC 1.8
Annotations Gifts to Lawyer Cases
Statutes
Ethics Opinion Transactions with Beneficiaries Case
Ethics Opinion Appointment of Scrivener as Attorney for Fiduciary Ethics Opinions Retaining Original Documents Ethics Opinions
Articles Serving as Fiduciary and Counsel for Fiduciary Ethics Opinion
Statute Prohibited Transactions Cases
Ethics Opinion

MRPC 1.9: Conflict of Interest:

Former Client
ACTEC Commentary on MRPC 1.9
Annotations Cases
Ethics Opinions

MRPC 1.13: Organization as Client

ACTEC Commentary on MRPC 1.13
Annotations Cases
Ethics Opinions

MRPC 1.14: Client under a Disability

ACTEC Commentary on MRPC 1.14
Annotations Cases
Ethics Opinions
Articles

MRPC 1.16: Declining or Terminating

Representation
ACTEC Commentary on MRPC 1.16
Annotations Cases
Ethics Opinions
Secondary Authority

MRPC 2.1: Advisor

ACTEC Commentary on MRPC 2.1

MRPC 2.2: Intermediary

ACTEC Commentary on MRPC 2.2
Annotations Ethics Opinions
Article

MRPC 2.3: Evaluation for Use by

Third Persons
ACTEC Commentary on MRPC 2.3

MRPC 3.3: Candor toward the Tribunal

ACTEC Commentary on MRPC 3.3

MRPC 3.7: Lawyer as Witness

ACTEC Commentary on MRPC 3.7
Annotations Cases
Ethics Opinion

MRPC 4.1: Truthfulness in Statements to Others

ACTEC Commentary on MRPC 4.1

MRPC 4.3: Dealing with Unrepresented Person

ACTEC Commentary on MRPC 4.3
Annotations Case