Conflicts, Confidentiality, and Other Ethical Considerations in Estate Planning (Portfolio 801)

Description

Tax Management Portfolio, Conflicts, Confidentiality, and Other Ethical Considerations in Estate Planning, No. 801, focuses primarily on the rules of professional conduct that govern lawyers whose practices involve tax and estate planning. These so-called ethical rules represent serious efforts at self-regulation by the legal profession in each state. The rules are intended to protect the public, the profession, and the legal system as a whole. The ethical rules are related to, but distinct from, the standard of performance by which a lawyer’s civil liability (malpractice) is determined. Notably, the violation of an ethical rule could give rise to a disciplinary action against the lawyer, which could result in the lawyer being exonerated, censured, suspended from practice or disbarred. The same conduct could have serious civil consequences, including the invalidation of documents, recovery of fees paid to the lawyer, and imposition of liability on the lawyer in a malpractice action.

This Portfolio deals with the ethical obligations of lawyers in private practice, most notably as set out by the American Bar Association in the Model Rules of Professional Conduct. Although the focus is on the ethical rules, malpractice issues are mentioned at appropriate places throughout the Portfolio because of the interrelationship between ethical and malpractice standards. Treasury Circular 230, which governs the conduct of private attorneys, as well as certified public accountants and other persons enrolled to practice before the IRS, also is discussed in detail. Ethical guidelines adopted by other professional groups are mentioned as appropriate. In addition, some attention is given to the special rules that apply to lawyers in government service, including the IRS Rules of Conduct.

The Worksheets include sample engagement and declination letters, selected text of Treasury Circular 230, and a chart describing which Model Rules are involved in specific stages in the estate planning process.

Selected rules from the ABA Model Rules of Professional Conduct are reprinted in the Portfolio with the permission of the American Bar Association. In addition, former Rule 2.2 is reprinted in the Portfolio with permission from the American Bar Association, from the ABA Model Rules of Professional Conduct. Rule 2.2 was deleted when the Model Rules of Professional Conduct were amended.

The author acknowledges the permission of the American College of Trust and Estate Council Foundation to build upon his work as reporter for the 1993 and 1995 editions of the ACTEC Commentaries on the Model Rules of Professional Conduct, published by the Foundation. The ACTEC Commentaries provide extensive guidance for estate planners regarding the Model Rules of Professional Conduct and extensive annotations. Copies of the ACTEC Commentaries (4th ed. 2006) are available from the ACTEC Foundation.

This Portfolio may be cited as Price, 801 T.M., Conflicts, Confidentiality, and Other Ethical Considerations in Estate Planning.

Table of Contents

I. Introduction
II. Duties of Lawyers During the Estate Planning Process
III. Model Rules of Professional Conduct
IV. Model Rule 8.3 – Reporting Professional Misconduct
V. Principal Internal Revenue Code Penalty Provisions
VI. Duties of Lawyers Employed by the Government