When a lawyer sees a client to prepare a will, there are a number of ways in which things can go awry, leading to liability for the lawyer. A simple mistake in drafting, if not caught in time, can lead to problems for the drafting lawyer down the road. The Law Society’s Rules of Professional Conduct provide for a number of other scenarios in which trouble can arise. A simple read-through of the Rules of Professional Conduct and some careful reflection on best practices can protect lawyers from liability when wills go wrong.
Consider the scenario where a newlywed couple retains a lawyer to draft their wills. Each agrees to leave everything to the other. After one client leaves the lawyer’s office, the other client tells the lawyer that she plans to change her will, and asks the lawyer not to tell her spouse. Must you tell the spouse? May you tell the spouse?
The Rules of Professional Conduct and accompanying commentary provide that this should be treated by the lawyer as a joint retainer. Under Rule 2.04(6), a lawyer must tell clients under a joint retainer at the outset that the lawyer cannot keep information confidential as between the joint clients. As well, if any conflict comes up, the lawyer must withdraw from representing either, and the clients must be told this up front.
The Rules of Professional Conduct also provide wise guidance to lawyers drafting wills with respect to delegation of tasks to staff. Most good lawyers owe some of their success to the capable clerks and assistants that operate behind the scenes. Often, staff will take instructions, prepare drafts, or act as witnesses. Very often, staff can perform these tasks as ably, if not more ably, than the lawyer that they support.
The Rules provide limits on what legal staff should and should not do. In particular, the commentary to Rule 5.01(2) provides specific guidance with respect to wills, trusts and estates practitioners:
“A lawyer may permit a non-lawyer to attend to all matters of routine administration, to assist in more complex matters, to collect information, draft routine documents and correspondence, to prepare income tax returns, to calculate such taxes, to draft executors’ accounts and statements of account, and to attend to filings.”
A lawyer must directly supervise and is professionally responsible for the conduct of his or her staff. A lawyer should check in and review the work of his staff. A lawyer should avoid assigning to a non-lawyer tasks which will require the lawyer’s professional skill and judgment.
There are a myriad of ways in which familiarity with the Rules of Professional Conduct can help to avoid liability in wills and estates practices beyond the few discussed here. All lawyers should be familiar with the Rules, and should review them from time-to-time. It may prevent a lot of heartache for both lawyer and client.
Thank you for reading!