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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT

(a)     A lawyer shall:

(1)    promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2)    reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3)    keep the client reasonably informed about the status of the matter;

(4)    promptly comply with reasonable requests for information; and

(5)    consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b)     A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
* * * * * * * * * * * * * *
Encouraging Communication; Discretion Regarding Content. Communication between the lawyer and client is one of the most important ingredients of an effective lawyer-client relationship. In addition to providing information and counsel to the client, the lawyer should encourage communications by the client. More complete disclosures by a client may be encouraged if the lawyer informs the client regarding the confidentiality of client information. See MRPC 1.6 (Confidentiality of Information). The nature and extent of the content of communications by the lawyer to the client will be affected by numerous factors, including the age, competence, and experience of the client, the amount involved, the complexity of the matter, cost controls and other relevant considerations. The lawyer may exercise informed discretion in communicating with the client. It is generally neither necessary nor appropriate for the lawyer to provide the client with every bit of information regarding the representation.
In order to obtain sufficient information and direction from a client, and to explain a matter to a client sufficiently for the client to make informed decisions, a lawyer should meet personally with the client at the outset of a representation. If circumstances prevent a lawyer from meeting personally with the client, the lawyer should communicate as directly as possible with the client. In either case the elements of the engagement should be confirmed in an engagement letter.
Effective personal communication is necessary in order to ensure that any estate planning documents that are prepared by a lawyer are consistent with the client's intentions. Because of the necessity that estate planning documents reflect the intentions of the person who executes them, a lawyer should not provide estate planning documents to persons who may execute them without receiving legal advice. Accordingly, a lawyer should be hesitant to provide samples of estate planning documents that might be executed by lay persons without legal advice. A lawyer may, of course, prepare or assist in the preparation of, sample estate planning documents that are intended to be used by lawyers or by lay persons with personal legal advice.
Communications During Active Phase of Representation. The need for communication between the lawyer and client is reflected in Rules respecting the lawyer's duties of competence and diligence. See ACTEC Commentaries on MRPCs 1.1 (Competence) and 1.3 (Diligence). The lawyer's duty to communicate with a client during the active period of the representation includes the duty to inform the client reasonably regarding the law, developments that affect the client, any changes in the basis or rate of the lawyer’s compensation (See ACTEC Commentary on MRPC 1.5 (Fees), and the progress of the representation. The lawyer for an estate planning client should attempt to inform the client to the extent reasonably necessary to enable the client to make informed judgments regarding major issues involved in the representation. See ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer). In addition, the lawyer should inform the client of any recommendations that the lawyer might have with respect to changes in the scope and nature of the representation. The client should also be informed promptly of any substantial delays that will affect the representation. For example, the client should be informed if the submission of draft documents to the client will be delayed for a substantial period regardless of the reason for the delay.
Communications Needed For Informed Consent. Some of the rules require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of action. The nature of the communication that is generally required in connection with informed consent is described in MRPC 1.0 (e).
Advising Fiduciary Regarding Administration. Unless limited by agreement concerning the scope of the representation, the lawyer who represents a fiduciary generally with respect to a fiduciary estate should assist the fiduciary in making decisions regarding matters affecting the representation, such as the timing and composition of distributions and the making of available tax elections. The lawyer should make reasonable efforts to see that the beneficiaries of the fiduciary estate are informed of decisions regarding the fiduciary estate that may have a substantial effect on them. See ACTEC Commentaries on MRPCs 1.3 (Diligence), 4.1 (Truthfulness in Statements to Others) and 4.3 (Dealing with Unrepresented Person).
Dormant Representation. The execution of estate planning documents and the completion of related matters, such as changes in beneficiary designations and the transfer of assets to the trustee of a trust, normally ends the period during which the estate planning lawyer actively represents an estate planning client. At that time, unless the representation is terminated by the lawyer or client, the representation becomes dormant, awaiting activation by the client. At the client's request the lawyer may retain the original documents executed by the client. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: General Rule). Although the lawyer remains bound to the client by some obligations, including the duty of confidentiality, the lawyer's responsibilities are diminished by the completion of the active phase of the representation. As a service the lawyer may communicate periodically with the client regarding the desirability of reviewing his or her estate planning documents. Similarly, the lawyer may send the client an individual letter or a form letter, pamphlet, or brochure regarding changes in the law that might affect the client. In the absence of an agreement to the contrary, a lawyer is not obligated to send a reminder to a client whose representation is dormant or to advise the client of the effect that changes in the law or the client's circumstances might have on the client's legal affairs.
Termination of Representation. A client whose representation by the lawyer is dormant becomes a former client if the lawyer or the client terminates the representation. See MRPC 1.16 (Declining or Terminating Representation) and MRPC 1.9 (Conflict of Interest: Former Client) and the ACTEC Commentaries thereon. The lawyer may terminate the relationship in most circumstances, although the disability of a client may limit the lawyer's ability to do so. Thus, the lawyer may terminate the representation of a competent client by a letter, sometimes called an “exit” letter, that informs the client that the relationship is terminated. The representation is also terminated if the client informs the lawyer that another lawyer has undertaken to represent the client in trusts and estates matters. Finally, the representation may be terminated by the passage of an extended period of time during which the lawyer is not consulted.
In general, a lawyer may communicate with a former client regarding the subject of the former representation and matters of potential interest to the former client. See MRPCs 7.3 (Direct Contact with Prospective Clients) and 7.4 (Communication of Fields of Practice).
Example 1.4-1. Lawyer (L) prepared and completed an estate plan for Client (c). At C's request L retained the original documents executed by C. L performed no other legal work for C in the following two years but has no reason to believe that C has engaged other estate planning counsel. L's representation of C is dormant. L may, but is not obligated to, communicate with C regarding changes in the law. If L communicates with C about changes in the law, but is not asked by C to perform any legal services, L's representation remains dormant. C is properly characterized as a client and not a former client for purposes of MRPCs 1.7 and 1.9.
Example 1.4-2. Assume the same facts as in Example 1.4-1 except that L's partner (P) in the two years following the preparation of the estate plan renders legal services to C in matters completely unrelated to estate planning, such as a criminal representation. L's representation of C with respect to estate planning matters remains dormant, subject to activation by C.
ANNOTATIONS
See Caveat to Annotations
(Limiting the Scope and Purpose of the Annotations)
See also the Annotations following the ACTEC Commentary on MRPC 1.1.
Enabling Estate Planning Client to Make Informed Decisions
Cases
California:
Butler v. State Bar, 228 Cal. Rptr. 499 (1986). This case is summarized in the Annotations following the ACTEC Commentary on MRPC 1.1.
In re Respondent G., 1992 WL 204655 (Cal. Bar Ct. 1992). In this proceeding a lawyer was privately reprimanded for repeated failure to advise a client of the state inheritance tax owed by her with respect to an estate administration handled by the lawyer.
Ridge v. State Bar, 254 Cal. Rptr. 803 (1989). A lawyer-executor was disciplined for mismanaging the estate and failing to communicate with the lawyer’s client.
Kansas:
In Re Flack, 33 P.3d 1281 (Kan. 2001). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 5.5.
New Jersey:
A v. B v. Hill Wallack, 726 A.2d 924 (N.J. 1999). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.6.
Ziegelheim v. Apollo, 607 A.2d 1298 (N.J. 1992). In a malpractice action arising from the defendant’s alleged failure properly to advise his client, the court noted that “the lawyer is obligated to keep the client informed of the status of the matter for which the lawyer has been retained, and is required to advise the client on the various legal and strategic issues that arise.” 607 A.2d at 1303. Ohio:
Bar Ass’n of Greater Cleveland v. Cook, 480 N.E.2d 436 (Ohio 1985). In this case the lawyer’s failure to advise an executor of his rights and responsibilities regarding the filing of accountings was one charge involved in a multi-count case that resulted in the lawyer’s disbarment.
Ethics Opinion
Delaware:
Board Case No. 52 (2001). Client approached the attorney in December of 2000 to assist her as surviving spouse of husband’s estate. In April 2001, the attorney sent the client his first and only written communication in which the attorney explained that he would not represent the client. During the period of lack of communication, the client lost significant rights with respect to her capacity as a beneficiary of her husband’s estate. The lawyer violated MRPC 1.4(b), regarding communication, by not explaining to the client the information necessary to allow the client to make informed decisions regarding the representation.
Extent of Continuing Duty to Client
Cases
California:
Brandlin v. Belcher, 134 Cal. Rptr. 1 (Ct. App. 1977). A client for whom the lawyer had previously drawn a will and trust discussed with a trust officer changing the trust to add other children as beneficiaries. The trust officer discussed the possibility with the lawyer, who said that he would have to hear from the client directly. The client died without having amended her trust. The Lawyer was granted a summary judgment in an action brought against him by the decedent’s children for negligence. “[Lawyer] fully discharged whatever duty his prior representation imposed by his request through the intermediary that the client communicate with him personally. [Lawyer’s] conduct satisfied rather than violated his duty as a lawyer. It was designed to assure that the personal nature of the attorney-client relationship was protected.” 134 Cal. Rptr. at 3.
Heyer v. Flaig, 74 Cal. Rptr. 225 (1969). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1.
New York:
Lama Holding Co. v. Shearman & Sterling, 758 F. Supp. 159 (S.D.N.Y. 1991). This case involves a U.S. holding company and its foreign parents who brought an action against a law firm and trust company alleging various causes of action arising from the defendants’ alleged failure to inform the plaintiffs of changes in U.S. tax laws affecting the plaintiffs’ investments. Applying New York law, the federal district court held that the complaint properly stated a cause of action against the law firm for legal malpractice (among other claims). According to the allegations of the complaint a partner at the law firm, in response to a specific inquiry as to the possible effect on plaintiffs’ interests of tax legislation then pending in Congress, replied there were no significant tax changes enacted as of that time, but that the firm would inform the plaintiffs if any significant amendments to U.S. tax laws were enacted in the future.
Washington:
Stangland v. Brock, 747 P.2d 464 (Wash. 1987). The court here ruled that, after a will is prepared and executed, “the attorney has no continuing obligation to monitor the testator’s management of his property to ensure that the scheme originally established in the will is maintained.”
Termination of Lawyer-Client Relationship
See also ACTEC Commentary on MRPC 1.16 and the Annotations thereto.
Cases
Federal:
Artromick Intern., Inc. v. Drustar, Inc., 134 F.R.D. 226 (S.D. Ohio 1991). In this disqualification case the court found that a pre-existing lawyer-client relationship had terminated. It is unreasonable to continue to demand an attorney’s undivided loyalty for an indefinite period of time when the attorney’s last bill is both disputed and unpaid, and when each of several new opportunities to use the attorney’s services is directed to another firm. Even if, subjectively, plaintiff did consider Mr. Dunn to be their attorney in January, 1990, that belief became objectively unreasonable at some point prior to that date. The precise date need not be identified: it is enough to conclude, taking into account all the relevant facts, that the relationship ended before Schottstein accepted this litigated matter.
Heathcoat v. Santa Fe International Corp., 532 F. Supp. 961 (E.D. Ark. 1982). The court here found that the lawyer-client relationship between the individual plaintiff and her lawyer had ended after a will prepared by the lawyer had been executed by her in 1966 although in 1981 she received a form letter from the law firm. In the meantime, the individual lawyer who had provided the estate planning services had died. The salutation of the letter, which pointed out the significance of ERTA, was “Dear Friend.”
Manoir-Electroalloys Corp. v. Amalloy Corp., 711 F. Supp. 188 (D. N.J. 1989). In this case the court found that the lawyer-client relationship which was established in 1976 still existed in 1989. The law firm performed estate planning services for the client and his spouse in 1976, advised the client regarding the renegotiation of an employment contract in 1983 and 1984 and sent the client estate planning reminder letters in 1983 and 1988.
Shearing v. Allergan, Inc., 1994 WL 382450 (D. Nev. 1994). Here a lawyer was disqualified from representing a litigant whose interests were adverse to those of a corporation for which the lawyer had served as outside counsel although the lawyer had not been consulted for over a year.
California:
Worthington v. Rusconi, 35 Cal. Rptr. 2d 169 (Ct. App. 1994). The court here held that, for purposes of applying the statute of limitations, the continuation of a representation should be determined by examining the facts from “an objective point of view.” 35 Cal. Rptr. 2d at 175.

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