Hello. My name is Chang Chae. I'm an ACTEC Fellow in Los Angeles, California and I'm here with Toni Ann Kruse, an ACTEC Fellow in New York, New York; and we're here to talk about what to expect after hiring an attorney. Toni Ann, when you're representing an estate-planning client, what's the first thing you think about?
My first thought is making sure I know who the client is, exactly. This may seem like a silly thing at first glance. How could your attorney not know who the client is? Aren't you right in front of them? But the answer is not always that straight forward, particularly when your attorney is representing you and your spouse as a couple. Your attorney should be very clear with you about whether they're representing one or both of you. You, as the individual client, may also act in different capacities in your life. For example, you may own a company. You may be on the board of directors. Perhaps you have a role in a charitable organization, or you may act as trustee of multiple trusts. For this reason, in addition to making sure that the lawyer knows who you are as the client, the lawyer should be very clear in the engagement letter you sign as to who the client is not. When an attorney represents you and your planning matters, your attorney should note that they are not representing you in any other capacity - unless you're asking them to do so. in which case, of course, that should be spelled out too.
When you're representing a couple, whether they're married or not, what are the complications to that representation?
Your attorney should explain clearly to you the consequences of what’s called a “joint representation.” A couple represented jointly is considered a client collectively. That means that any matters that you or your spouse discuss with the attorney could be disclosed to the other. So you really need to be on the same page, and it needs to be a collective representation. The rules of ethics prohibit attorneys from agreeing with one individual in the couple to withhold information from the other. You should also be sure that your attorney agrees to never give legal advice to either of you or make changes to your or your spouse's estate planning documents without mutual knowledge.
What about when representing multiple generations in a family?
So, this is similar to the last question in some ways. It's important that your attorney knows exactly what they are representing you and your family on, in terms of whether or not it's on common goals, in a common representation, or not. That will help them to determine how to undertake the representation. In some instances, you may be asking an attorney to represent multiple members of your family on a separate representation basis. This could be in a situation where you're asking the attorney to do planning matters for multiple branches of the family; for example, everyone in the family needs new wills, and revocable trusts, and healthcare proxies, and powers of attorney. In all those cases, your attorney has a duty to act in the best interest of each separate client, without being influenced by the conflicting interests of any other client or anyone else. If a situation arises where the attorney does not think they can satisfy their ethical obligations to all of you, then the attorney may be required to withdraw. And you should be sure that all of the terms of the representation are really clear to you in the engagement letter that you received from your attorney. Another example is where you may request that the attorney represent multiple family members, possibly in different generations or branches toward a common goal. This could be, for example, a generational shift in the administration of a trust or a restructuring of the family office, for example. In an instance like this, you are engaging your lawyer to act more like an intermediary. This can be absolutely fine as long as the lawyer explains to all of you the implications of the common representation, including the advantages that you will receive through a common representation, like efficiency. It's a lot easier to get things done with one lawyer than maybe having five, and five different people’s opinions involved. You know, it could just be faster and more efficient from a legal fee perspective. But there are also risks, and the risks can be things like needing separate counsel if a conflict comes up, and needing to shift gears like that. And your attorney should also have consent from all of you, as clients involved in the matter. Your attorney should be very confident and feel clear that whatever the matter is for the joint representation, it can be accomplished in everyone's best interest.
What happens when a client dies? How do you undertake that representation?
So, it depends when a client dies what exactly will happen. If you as a family are requesting counsel to represent the estate, that will require a new engagement letter to do so, and the lawyer should be clear with you about how they're representing you. This may mean that you're asking the attorney to represent you as the “executor” of the deceased client’s will, or maybe as the “trustee” of the deceased client’s revocable trust, or maybe even as a “beneficiary” of the deceased client’s estate, or all of these. If the individual who is acting in these roles is also a client in their own individual capacity, for example like the spouse - this comes up a lot - then the attorney should set all of this out in an engagement letter that clearly notes that all of these representations are on a separate representation basis.
Thank you, Toni Ann. That was very helpful, and thank you for joining us. If you'd like more information on this topic and others, please check out the ACTEC website.