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| Note: the ACTEC Engagement Letters are also avalable in Adobe PDF format.
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Developed by the
Professional Responsibility Committee of
The American College of Trust and Estate Counsel
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TABLE OF CONTENTS
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INTRODUCTION
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| Purpose of the Engagement Letters and Checklists
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| In October 1993 the Board of Regents of The American College of Trust and Estate Counsel adopted the ACTEC Commentaries on the Model Rules of Professional Conduct (“ACTEC Commentaries”), to provide better guidance to estate planners regarding their professional responsibilities. The ACTEC Commentaries consists primarily of commentaries that discuss how the most relevant of the ABA’s Model Rules of Professional Conduct apply to trust and estate lawyers. The project was undertaken by ACTEC, in part, because of a concern that the ABA’s Model Rules of Professional Conduct and the Comments to them primarily reflected a perspective based on a litigation or adversarial model that provided insufficient guidance to estate planners regarding their ethical responsibilities.
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| The ACTEC Commentaries continues to be a work in progress—one that is periodically revised to reflect amendments to the Model Rules and the latest ethics cases and opinions. Accordingly, the ACTEC Commentaries was revised and updated in March 1995, March 1999, and again in March 2006. Among other things, the Fourth Edition of the ACTEC Commentaries, published in March 2006, addresses the important changes to the Model Rules made by the ABA in 2002 and 2003.
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| From the outset, the Commentaries have consistently emphasized that the Model Rules generally permit lawyers and their clients to define the scope and objectives of a legal engagement. Reflecting that emphasis, the Commentaries strongly encourage the use of engagement letters to establish the scope and objectives of an engagement, to describe the basis upon which fees will be determined, and to explain how conflicts of interest and issues of confidentiality will be handled. As stated in the ACTEC Commentary on MRPC 1.3, “The risk that a client will misunderstand the scope or duration of a representation can be substantially reduced or eliminated if the lawyer sends the client an engagement letter at the outset of the representation.”
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| Because of the critical importance of engagement letters, ACTEC—through the work of its Professional Responsibility Committee and with the financial support of the ACTEC Foundation—developed a series of forms of engagement letters, which were contained in Engagement Letters: A Guide For Practitioners (“Engagement Letters”), published in June 1999. The sample engagement letters that are included in that guide address the ethical issues that may arise as a trust and estate lawyer and a client collaborate in establishing the nature and scope of a representation. The First Edition of Engagement Letters also included checklists that could be use with, or independent of, the engagement letter forms. Trust and estate lawyers have responded favorably to Engagement Letters, which they have found to be a useful tool and reference work.
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| With the amendments to the Model Rules made by the ABA in 2002 and 2003 and the publication of the Fourth Edition of the ACTEC Commentaries, ACTEC is now publishing the Second Edition of Engagement Letters. The Second Edition builds on the initial edition by updating the forms and checklists to address the amended version of the Model Rules, to respond to other changes in the law, and to provide cross references to the latest edition of the ACTEC Commentaries. In addition, this Second Edition includes checklists and forms that address a variety of engagement scenarios that were not dealt with in the First Edition and by offering additional drafting options. The goal of these changes is to assist lawyers in providing ethical services to clients based on a family-oriented practice model, to demonstrate how trust and estate lawyers can use engagement letters to promote competent and ethical representation of their clients, to increase the utility and value of the engagement letters and checklists, and to provide an improved resource for the bench and bar and a better tool for law schools in teaching ethics.
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| Organization of the Engagement Letters
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| Following this introduction, there is a general checklist designed to aid the lawyer before preparing the engagement letter in any trust and estate representation. The general checklist includes cross references to the specific checklists and forms that follow.
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| Following the general checklist, there are eight chapters, each with a basic engagement letter form or specific language to be added to, or used in conjunction with, a basic engagement letter form addressing:
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Chapter 1: Representation of Spouses;
Chapter 2: Representation of Multiple Generations of the Same Family;
Chapter 3: Representation of Multiple Parties in a Business Context;
Chapter 4: Estate Planning Lawyer Serving as a Fiduciary;
Chapter 5: Representation of Executors and Trustees;
Chapter 6: Fiduciary Litigation;
Chapter 7: Dealing with the Potential for Diminished Capacity; and
Chapter 8: Withdrawing from Representation.
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| Each chapter begins with an introduction and a cross reference to the ACTEC Commentaries applicable to the subject matter of that chapter. These are followed by a supplemental checklist designed to expand the utility of the general checklist with respect to the subject matter of that chapter. The engagement letter form or special language for addition to the engagement letter form then completes the chapter. Within many of the basic forms, there are sections setting forth optional provisions for that form.
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| Caveat: Limitations Regarding the Use of the Checklists and Forms
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| The Engagement Letters cannot and do not replace a lawyer’s own independent judgment. In particular, the Engagement Letters are designed to address issues that would affect all lawyers in the United States but without reference to, or consideration of, the specific ethical rules and requirements of any particular jurisdiction. As a result, there may be state-specific rules that affect the use of a particular form and may require a deletion from, modification of, or addition to the basic form.
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| Moreover, no single form or checklist will cover all situations. Thus, lawyers and others using these materials should consider both the general checklist, the checklist for the basic form, the basic form, and the optional provisions in relationship to the specific services that the client has requested the lawyer to provide. When the client seeks an unusual service, the lawyer may find that the engagement letters and optional provisions do not address that unusual situation. Under such circumstances, the lawyer may need to draft new or different provisions in the engagement letter in order to provide the requested service competently and ethically.
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| Finally, each form has an order for presenting issues to the client and a style in making that presentation. In general, the style is legalistic and thorough. In addition, the forms generally are based on an engagement letter from a law firm to a client, as opposed to one from an individual lawyer to a client, and they are also generally based on representing multiple clients. Accordingly, a lawyer using these forms and checklists should consider them a starting point that, based on the lawyer’s independent judgment, should be modified as necessary to reflect the lawyer’s style, practice, governing laws, and clientele.
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| User Comments
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| While the Engagement Letters reflect the thoughtful efforts of many Fellows in the College, and in particular the work of the members of the Professional Responsibility Committee, and while ACTEC has sought to make this tool as useful and thorough as possible, the Engagement Letters, as stated above, are a work in process. ACTEC would be pleased to receive from the lawyers and others using and studying these forms and checklists any comments regarding the Engagement Letters. These comments should be addressed to the Chair of the Professional Responsibility Committee using one of the following methods:
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By letter to:
The American College of Trust and Estate Counsel
3415 South Sepulveda Boulevard, Suite 330
Los Angeles, California 90034
Attention: Chair of the Professional Responsibility Committee
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By fax to:
(310) 572-7280
Attention: Chair of the Professional Responsibility Committee
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By email to:
info@actec.org
Subject line: Attention: Chair of the Professional Responsibility Committee
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| Thank you in advance for your use of this guide and your contribution to its continuing development.
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GENERAL CHECKLIST
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| 1. |
ISSUES A LAWYER SHOULD CONSIDER BEFORE ACCEPTING THE REPRESENTATION
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(a) |
Is there any previous or existing client or advisory relationship between/among the lawyer (or his or her firm) and any of the parties, their spouses, or families? If so, does the lawyer have any conflict in representing any of the parties? If the lawyer (or the lawyer’s firm) has represented any of the parties, their spouses, or their families before, in what capacity (e.g., individually, as an officer or director of an organization, or as a fiduciary or beneficiary of an estate or trust)?
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(b) |
How well does the lawyer know the parties?
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(c) |
Are the parties U.S. citizens? Are the parties U.S. residents? What is the domicile of the parties? If any entity is involved, is the entity duly organized and in good standing in all appropriate jurisdictions? In which jurisdiction or jurisdictions will the entity be organized or authorized to do business?
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(d) |
Do all parties appear to have adequate capacity to enter into the engagement?
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(e) |
What common connections do the parties have with each other (e.g., spouses, parent and child, owners of a family-controlled entity, fiduciaries or beneficiaries of an estate or trust)?
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(f) |
What other client, advisory, or referral relationships exist?
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(g) |
Who are the other professionals involved (e.g., accountants, appraisers, brokers)?
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(h) |
Are the expectations of the parties as to the outcome and timing of the lawyer’s work reasonable and obtainable?
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(i) |
What are the fee arrangements?
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| 2. |
DEFINE THE SCOPE OF THE REPRESENTATION.
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(a) |
Describe with appropriate specificity the objectives of the representation and the means by which those objectives are to be pursued.
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(b) |
Describe the nature and consequences of any limitations on the scope of the representation, and obtain the clients’ consent to such limitations.
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(c) |
What do the parties expect the “style” of the representation to be (e.g., separate meetings with each party or combined meetings of all interested parties? Do the parties intend to share specific materials relating to finances: documents, either existing or to be prepared? Do they intend that information will be transmitted in writing or orally? What about the sharing of disclosures to or from accountants, appraisers, insurance and investment advisors, or other professionals)?
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(d) |
Describe the extent to which the lawyer may elect or be required to share certain otherwise confidential information in order to comply with applicable standards of practice.
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(e) |
Describe with appropriate specificity the time frame within which the various phases of the engagement will be completed. Consider mentioning any foreseeable delays or periods during which the lawyer may not be available during the engagement; consider identifying the other attorneys, legal assistants, and support personnel in the lawyer’s office who may or should be consulted in the event of the lawyer’s absence or unavailability.
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(f) |
Because of the importance these issues have recently assumed in trust and estate matters, consideration should be given to including or excluding asset protection planning and the effect of the HIPAA regulations in the scope of the engagement.
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(g) |
Make it clear that absent an updated engagement letter, the lawyer will not be obligated to provide services beyond the scope of the engagement as described in the original letter.
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(h) |
Describe the extent to which the lawyer will rely upon information furnished by the parties and the extent, if any, to which the lawyer will attempt to verify this information. Describe the circumstances under which the lawyer may be required to verify some or all of the information furnished by the parties in order to comply with the applicable standards of practice (e.g., Circular 230). Describe the effect this investigation may have on the fee and any fee estimate.
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| 3. |
IDENTIFY THE CLIENT OR CLIENTS.
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(See the Supplemental Checklist for each practice scenario.)
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| 4. |
EXPLAIN THE LAWYER’S DUTY TO AVOID CONFLICTS OF INTEREST AND HOW POTENTIAL OR ACTUAL CONFLICTS OF INTEREST WILL BE RESOLVED.
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(a) |
Describe the effect and consequences of any simultaneous representation of multiple clients, including the potential conflicts of interest that might arise, how any future conflicts of interest will be resolved, and the possibility of the subsequent withdrawal by the lawyer or a decision of any one or more of the individual clients to seek separate counsel.
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(a) |
If appropriate, describe the effect on the potential conflicts of interest resulting from any prior representation of one or more of the individual clients.
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(c) |
Obtain the consent of all clients to any simultaneous representation of multiple clients. Confirm in the engagement letter that the lawyer discussed the implications of joint representation, and secure the informed consent of all of the clients. Consider who can properly sign for any entity involved and who should perhaps sign, even though they may not have formal roles in the entity.
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(d) |
If appropriate, describe the possible conflicts of interest resulting from a prior or contemporaneous representation of a competitor of a client’s business.
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(e) |
Consider requesting authorization by all of the clients to the disclosure to all the interested parties of the actions of any one of the clients constituting fraud, a violation of the governing documents of any entity involved, or in contravention of a mutual estate plan.
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(f) |
If appropriate, describe the possible conflict of interest if the lawyer is to receive an interest in any business as a part of the lawyer’s fee.
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(g) |
Describe the adverse consequences that would result if it becomes necessary for the lawyer to withdraw from the joint representation, including the question as to whether any further representation by the lawyer of any one or more of the clients is appropriate or prohibited if the joint representation fails.
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(h) |
Identify which, if any, of the multiple clients the lawyer may or will continue to represent in the matter at hand or related matters if the joint representation fails for any reason [e.g., does the lawyer (or the lawyer’s firm), on the basis of longstanding relationship with one of the clients, intend to represent that client in the future, even if the lawyer (or the firm) no longer represents another of the clients; or will the lawyer (and the firm) withdraw from representing any of the clients?].
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(i) |
Describe the possibility of a future prohibition on the lawyer’s representation of any of the clients, depending upon the identity of the initial client.
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(j) |
Describe the opportunity of each of the parties to consult independent counsel before consenting to the joint representation.
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EXPLAIN THE LAWYER’S DUTY OF CONFIDENTIALITY AND HOW CONFIDENTIAL INFORMATION WILL BE HANDLED.
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(a) |
Describe the lawyer’s duty of confidentiality and how confidential information will be handled among the various individual clients and other constituents of any business entity involved, and obtain the clients’ consent to the sharing of information in this manner.
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(b) |
Describe any implied authorization to disclose information to other professionals and consultants. Explain if separate interviews with multiple clients are to be held or not and that it is to be pursuant to client consent or instructions.
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(c) |
Describe the advantages and disadvantages of communication by e-mail, cell phone, fax, etc., and obtain the clients’ consent to the use of these forms of communication and any limitations on their use.
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(d) |
Describe the effect and consequences of any of the joint clients revoking the waiver of confidentiality and prohibiting any further sharing of confidential information.
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(e) |
Describe the disadvantages resulting from the lawyer having to withdraw from the representation, or any client’s decision to seek separate counsel, as a result of revocation by any of the individual clients of consent to the sharing of confidential information among all the clients.
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(f) |
Describe how the diminished capacity or death of any individual client occurring after the representation is begun will affect the disclosure of confidential information.
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(g) |
Point out that the duty of confidentiality and any waiver of the duty of confidentiality continue in effect, even after the engagement is terminated.
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EXPLAIN THE FEE OR THE BASIS FOR THE DETERMINATION OF THE FEE AND THE BILLING ARRANGEMENTS [INCLUDING THE MATERIAL REQUIRED IN RULE 1.5 (b)].
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(a) |
If a contingent fee is involved, obtain the client’s consent in writing.
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(b) |
If appropriate, describe how the fee will be shared with other lawyers outside the firm.
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(c) |
If appropriate, describe the consequences of the lawyer’s fee being paid by someone other than the client and obtain the consent of the client to the arrangement; give assurances that the arrangement will not in any way diminish the lawyer’s duty of loyalty to the client, including the sharing of confidential information or the exercise of independent professional judgment by the lawyer on behalf of the client.
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(d) |
Describe factors that might cause the fee to be different from any estimate and how and when changes in standard billing rates may affect the fee.
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(e) |
Describe the circumstances under which the lawyer may be required to independently verify some or all of the information furnished by the client in order to comply with the applicable standards of practice (e.g., Circular 230). Describe the effect this investigation may have on the fee and any fee estimate.
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(f) |
Describe the lawyer’s billing and collection policies.
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(g) |
Verify the client’s billing address and contact information.
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(h) |
Describe who is liable for the lawyer’s fees and expenses. If the representation involves multiple clients, describe the extent to which each client is or may be liable for the lawyer’s fees and expenses and whether the liability of multiple clients is to be individual or joint and several.
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(i) |
Describe who will be responsible for the lawyer’s fees and expenses if the representation is terminated for any reason before the engagement is completed.
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TERMINATION OF THE REPRESENTATION
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(a) |
Describe the events, dates, or circumstances that will terminate the representation.
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(b) |
Describe the potentially adverse effects of any withdrawal from the representation by the lawyer. Describe the difference between mandatory and permissive withdrawal.
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(c) |
If the representation involves multiple clients, describe what information, if any, the lawyer will give to the clients if the lawyer is required to withdraw from the representation.
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(d) |
Describe what will happen when the lawyer withdraws and to whom the records will be sent.
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| 8. |
BECAUSE OF THE IMPORTANCE THESE ISSUES HAVE ASSUMED IN A TRUST AND ESTATE PRACTICE, CONSIDERATION SHOULD BE GIVEN TO SPECIFICALLY INCLUDING A DISCUSSION OF THE LAWYER’S DOCUMENT OWNERSHIP, RETENTION, AND DESTRUCTION POLICIES.
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| 9. |
DOCUMENT MULTIPLE REPRESENTATION.
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(a) |
Send out a proposed engagement letter to all of the prospective clients prior to a first meeting, or send out a letter to all of the clients after the first conference.
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(b) |
Review the engagement letter with the client at the first conference following a checklist or memorandum filled in during the first conference.
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(c) |
Identify all clients. See comment on Rule 1.7 as to who can sign for the entity (someone other than the represented principal). Consider including a representation by multiple clients that the interests being represented are not adversarial.
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(d) |
Require that all clients sign the engagement letter or memorandum or otherwise acknowledge the terms of any multiple representation.
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(e) |
Describe how the diminished capacity or death of any individual client occurring after the representation is begun will affect the representation; including, if appropriate, reference to, or summary of, the specific provisions of local law regarding the definition of diminished capacity, those persons who may be authorized to act on behalf of a client who has suffered diminished capacity, and the opportunity for the client to designate someone to act on his or her behalf in such an event.
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(f) |
Consider periodically reviewing with the client the engagement letter, to confirm the client’s continuing assent to the terms of the representation during the term of the long-term representation.
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(g) |
Suggest that any potential client who is uncomfortable with any aspect of the arrangement consult another lawyer before signing.
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CHAPTER 1. REPRESENTATION OF SPOUSES
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Introduction
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| These forms illustrate issues that should be addressed in discussing potential problems regarding confidential information and conflicts of interest in connection with representing spouses in an estate planning context and present one way in which these potential problems may be resolved.
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| There are two forms of letter reflecting fundamentally different approaches to the representation. The first form suggests a joint arrangement in which the lawyer shares all information in his or her possession with both spouses, unless and until an event occurs that affects that representation; in which case, the form sets out options for dealing with that event and its effect on the representation. Practitioners and their clients usually choose this method of representation.
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| The second form contemplates concurrent separate representation, which is tantamount to separate and independent representation of each spouse. In this mode, each client instructs the lawyer to hold all information he or she receives from either spouse in confidence so that the situation approximates as closely as possible the situation if the spouses were represented by independent counsel. There is significant controversy as to whether this approach is viable in this context and others, although there are noted and respected practitioners who use it. In any event, it is recommended that, if this approach is attempted, the practitioner be aware of the potential pitfalls and proceed with caution.
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References to the ACTEC Commentaries (Fourth Edition):
(Note that the page numbers shown below refer to the printed version of the ACTEC Commentaries.)
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| Terminology (re Informed Consent and Writing), p. 13
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| General Principles (re Scope of Representation), p. 32
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| Encouraging Communication; Discretion Regarding Content, p. 56
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| Communications During Active Phase of Representation, pp. 56-57
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| Termination of Representation, pp. 57-58
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| Basis of Fees for Trusts and Estates Services, p. 63
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| Joint and Separate Clients, pp. 75-76
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| Joint Representation Presumed, pp. 75-76
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| Multiple Separate Clients, p. 76
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| Confidences Imparted by One Joint Client, pp. 76-77
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| General Nonadversary Character of Estates and Trusts Practice; Representation of Multiple Clients, p. 91
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| Disclosures to Multiple Clients, pp. 91-93
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| Joint or Separate Representation, pp. 92-93
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| Declining or Terminating Representation, pp. 140-143
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Supplemental Checklist for Representation of Spouses
(Refer also to the General Checklist on pp. 4-8.)
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| 1. |
ISSUES THE LAWYER SHOULD CONSIDER BEFORE ACCEPTING THE REPRESENTATION
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(a) |
Determine what duties, if any, the spouses owe to each other, and how these duties would affect the lawyer’s representation and ability to carry out instructions such as those contained in existing pre- or post-marital agreements, contracts to make wills, and rights under pension plans.
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(b) |
Determine what duties, if any, either spouse owes to third parties regarding financial or property arrangements such as child support, parental support, obligations or rights to or from prior spouse and others by agreements, prior divorce decrees, or arising under compensation or retirement plans.
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(c) |
Determine what conflicts of interest exist, or may exist, between the two spouses and how they would affect the representation (e.g., knowledge the lawyer has that the plan of one spouse might defeat the plan or adversely affect the interests of the other; knowledge the lawyer has that possible future actions by one spouse might defeat the plan or adversely affect the interests of the other; or knowledge the lawyer has that a spouse’s expectations or understanding of the facts relating to the other spouse or such spouse’s intentions are not correct).
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| 2. |
IDENTIFY THE CLIENT.
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Is the client one of the spouses only, or are both spouses to be represented jointly or separately?
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| 3. |
EXPLAIN HOW POTENTIAL OR ACTUAL CONFLICTS OF INTEREST WILL BE RESOLVED.
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If a joint representation fails for any reason, the lawyer should address which, if either, of the clients the lawyer may continue to represent in the matter at hand or related matters. Does the lawyer (or the lawyer’s firm) on the basis of longstanding relationship with one of the clients intend to represent that client in the future, even if the lawyer (and the firm) no longer represents the other spouse? Or will the lawyer (and the firm) withdraw from representing either of the spouses in the matter at hand or related matters?
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(a) |
Make it clear that the lawyer will be representing only one spouse or the other, or both of them, either jointly or separately.
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(b) |
Describe the possibility of a future prohibition on the lawyer’s representation of either one of the spouses separately in the matter at hand or in related matters.
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(c) |
Describe the impact of gaining general knowledge regarding either spouse as opposed to knowledge of specific facts from prior representation, so as to avoid inadvertent disqualification.
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Form of an Engagement Letter for the Representation of Both Spouses Jointly
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| [Date]
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| [Name(s) and Address(es)]
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| Subject: [Subject Matter of the Engagement]
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| Dear [Clients]:
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| You have asked me to [scope of representation]. I have agreed to do this work and will bill for it on the following basis: [DESCRIBE ARRANGEMENTS PERTAINING TO FEES, BILLING, ETC.]. If I am asked to perform tasks not described in this letter, an additional engagement letter may be required for that work.
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| It is common for a husband and wife to employ the same lawyer to assist them in planning their estates. You have taken this approach by asking me to represent both of you in your planning. It is important that you understand that, because I will be representing both of you, you are considered my client, collectively. Ethical considerations prohibit me from agreeing with either of you to withhold information from the other. Accordingly, in agreeing to this form of representation, each of you is authorizing me to disclose to the other any matters related to the representation that one of you might discuss with me or that I might acquire from any other source. In this representation, I will not give legal advice to either of you or make any changes in any of your estate planning documents without your mutual knowledge and consent. Of course, anything either of you discusses with me is privileged from disclosure to third parties, except (a) with your consent, (b) for communication with other advisors, or (c) as otherwise required or permitted by law or the rules governing professional conduct.
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| If a conflict of interest arises between you during the course of your planning or if the [number] of you have a difference of opinion concerning the proposed plan for disposition of your property or on any other subject, I can point out the pros and cons of your respective positions or differing opinions. However, ethical considerations prohibit me, as the lawyer for both of you, from advocating one of your positions over the other. Furthermore, I would not be able to advocate one of your positions versus the other if there is a dispute at any time as to your respective property rights or interests or as to other legal issues between you. If actual conflicts of interest do arise between you, of such a nature that in my judgment it is impossible for me to perform my ethical obligations to both of you, it would become necessary for me to cease acting as your joint attorney.
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| Once documentation is executed to put into place the planning that you have hired me to implement, my engagement will be concluded and our attorney-client relationship will terminate. If you need my services in the future, please feel free to contact me and renew our relationship. In the meantime, I will not take any further action with reference to your affairs unless and until I hear otherwise from you.
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| After considering the foregoing, if you consent to my representing both of you jointly, I request that you sign and return the enclosed copy of this letter. If you have any questions about anything discussed in this letter, please let me know. In addition, you should feel free to consult with another lawyer about the effect of signing this letter.
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| Sincerely,
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| [Lawyer]
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CONSENT
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| Each of us has read the foregoing letter and understands its contents. We consent to having you represent both of us on the terms and conditions set forth. We each authorize you to disclose to the other and to our advisors any information regarding the representation that you receive from either of us or any other source.
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| Signed: ___________________, 20___
| __________________________________________
(Client 1)
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| Signed: ___________________, 20___
| __________________________________________
(Client 2) |
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Form of an Engagement Letter for the Representation of Both Spouses Concurrently but Separately
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