Just Because You Can . . . Doesn’t Mean You Should Become a Fiduciary for Your Clients' Beneficiaries

As trust and estate planning lawyers, clients often ask us to do things that might reduce current or future costs--representing multiple family members or family members and family businesses, or assuming a role of more than providing legal advice. Their reasons in favor of such actions: providing first-hand knowledge and efficient execution of the clients' intentions by a trusted, disinterested advisor; serving when a client has no other appropriate choice; or being the client’s long-term informal “general counsel” or “family lawyer.” Serving in the role might technically be both legal and ethical, but because we are compensated, we have riskier, and sometimes impermissible conflicts in our ethical and legal obligations and greater malpractice exposure.  This presentation addresses the confusing and overlapping standards created by disciplinary rules, the common law, and statutes that apply to a lawyer serving as a fiduciary under documents drafted by the lawyer.