Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Thursday, March 15, 2012

Presentation on Ethics and Malpractice Issues

MalpracticeJeffrey N. Pennell (Emory University School of Law) recently gave a presentation on Chapter 21: Ethics and Malpractice Issues located in Jeffrey Pennell & Alan Newman's book, TRUST AND ESTATE PLANNING (2d ed. 2009). An excerpt from the chapter is below: 

The vast majority of estate planners are of a personality type that makes them more sensitive than many attorneys to concerns about ethics, conflicts, and propriety. It is part of what drives them to specialize in this area of legal service. What some attorneys (including estate planners) seem to lack, however, is a sense of the issues and problems that can arise in the ethics arena. Moreover, the rules governing the legal profession are not about morality as much as they are guidelines and prohibitions that regulate the practice of law. Thus, a good moral compass is not enough to steer clear of ethics issues.

Most relations involved in this arena fall under the law of agency, from which most of the obligations and prohibitions found in the ethical rules applicable to lawyers are derived. As such, this “law” is as susceptible to learning as the Internal Revenue Code or a local probate code. It also can be as technical.

This Chapter seeks to raise your level of consciousness about certain “predictable” ethical dilemmas in estate planning and fiduciary administration in situations that often generate problems or issues. In some situations the ethics issue is clear and the appropriate action easily is identifiable. In many other cases there is no “correct” response to the problems that are identified. In these circumstances, a good result is recognition of the problem, which must be considered in the context in which it arises. Although unsatisfactory, often conscious recognition and a sensitivity to these concerns is the best that can be expected.

This Chapter also illustrates that this area lacks clear answers and direction because the ethics rules weren’t written by or for estate planners. Many of the existing rules don’t apply or, if they do apply (which is arguable), they apply woodenly. Many ethics rules that were written from a conflict resolution perspective impose obligations and restrictions that are difficult or inappropriate in the planning context.

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