Staying Out of the Minefield: Ethical
Considerations in Representing Clients in Estates,
Trusts, and Administrations in Local and Other
Jurisdictions
Jacqueline M. Schuh & Ivory S. Umanah
1521 Northway Drive
706 2nd Avenue South
Suite 115
St. Cloud, MN 56377
Suite 1100
(320) 230-0375
(612) 455-7720
Minneapolis, MN 55402
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Estate planning & administration requires a
working knowledge of
• The substantive law in the estate planning area
• Related areas of law, including divorce law, bankruptcy,
real estate law and business law
• Ethical rules
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Rogers v. Cruger, 7 Johns. 557 (N.Y. 1808).
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In re Estate of Stephens, 207 Minn. 597 (1940).
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The Call
The Interview
The Conflict Check
The Contract for Services and Payment
The Drafting
Choosing Fiduciaries
Administration Considerations
Monitoring the Law
Periodic Reviews of Estate Assets and Plans
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Clients are referred to us through several avenues:
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Phone book
Internet
Friends
Family
Seminars
Other professionals
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Failure to get all the information- i.e.
middle initials and addresses; and
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Failure to run a conflict check prior to
discussing any facts or information related
to the case
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What is the issue?
“ A lawyer shall provide competent representation
to a client. Competent representation requires
the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the
representation.”
◦ Minn. Rules of Prof'l Conduct 1.1.
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Big ego: I can handle anything with research
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Not knowing your boundaries and undertaking something
beyond your experience
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Failing to explain the matter and options as well as risks
to the client in a manner the client can understand
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Making predictions or promises about favorable outcomes
that sound easy and sure
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There is no rule against representing someone with capacity
issues
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When serving a client with diminished mental capacity, the
Minnesota Rules of Professional Conduct provides “as far as
reasonably possible,” the attorney should “maintain a normal
client-lawyer relationship with the client.” Minn. Rules of Prof’l
Conduct 1.14
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The attorney “may take reasonably protective action” such as
seeking the opinion of physicians, or seeking the appointment of
guardian ad litem, conservator or a guardian for the person
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To identify a client who may have diminished mental
capacity, the attorney can ask some basic questions to get an
idea of whether or not the person lacks capacity, such as;
◦ Where does the person live?
◦ Who are the person’ close relatives?
◦ What year is it? Who is the president of the United States?
◦ What does the person own? Why does the person want
to designate or omit certain relatives or friends from
serving in a fiduciary capacity, or being named as
beneficiaries?
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Seeking the appointment of a personal representative
or guardian/conservator has several advantages
◦ A qualified guardian may be in a better position to
assess the client’s needs
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However the attorney still has an obligation not
to disclose personal information about the
client, except where reasonably necessary to
act in the client’s best interest.
◦ Minn. Rules of Prof’l Conduct1.14(c).
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In re Ulanowski, 800 N.W.2d 785 (Minn. 2011).
◦ The attorney knew from the beginning of the representation that the client
had a mild brain injury
◦ After the attorney was accused of professional misconduct, the attorney
argued that the client’s diminished capacity was mitigated by the fact that
the client’s mother had assisted him throughout the representation
◦ The Minnesota Supreme Court disagreed and disbarred the attorney
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Before agreeing to represent any new client, the attorney should
check to make sure that any such representation would not present
a “concurrent conflict of interest”
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Therefore the attorney must answer (at least) two questions;
◦ Who is the client?
◦ Is there a “concurrent conflict of interest” or not?
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Spouses?
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Personal representative v. “the estate”
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Guardian?
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Conservator?
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General rule: An attorney is liable for professional negligence only to a
person with whom the attorney has an attorney-client relationship
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A direct, intended, third-party beneficiary may bring an action for legal
malpractice in those situations when the client's sole purpose is to benefit
the third party directly, and the attorney's negligent act caused the
beneficiary to suffer a loss.
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A party is a direct beneficiary of a transaction if the transaction has as a
central purpose an effect on the third party and the effect is intended as a
purpose of the transaction.
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Minnesota courts consider the Lucas factors
◦ See McIntosh County Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538,
547 (Minn. 2008).
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A lawyer may be paid by someone other than the client IF
◦ the client is informed of
 and consents to that fact.
◦ Minn. Rules of Prof'l Conduct 1.7, Comment 13.
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Additionally the arraignment must not “compromise the lawyer's duty of
loyalty or independent judgment to the client.”
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The Rules also require that, “If acceptance of the payment from any other
source presents a significant risk that the lawyer's representation of the
client will be materially limited by the lawyer's own interest in
accommodating the person paying the lawyer's fee or by the lawyer's
responsibilities to a payer who is also a co-client,” then the lawyer must
comply with the rules governing waivable conflicts of interest.
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“An attorney shall not represent a client if the representation
involves a concurrent conflict of interest” meaning…
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the representation of one client will be adverse to another client
there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client
or a third person, or by a personal interest of the lawyer
Minn. R. Prof’l Conduct1.7.
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Under certain circumstances, the conflict may be waived. (Id).
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Rule 1.8 provides additional guidance
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In re Severson, 860 N.W.2d 658 (Minn. 2015).
◦ The client was a member of the attorney’s household, who the attorney
treated like his own daughter
◦ The attorney convinced client to appoint him as power of attorney and
direct the investment of $500,000 of the client’s money
◦ Attorney used the money to fund his own business interests (which
failed)
◦ And the attorney was subsequently suspended from practice indefinitely
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Guiding a client through a matter and using illegal
or unethical ways to achieve the goals of the client
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Making false statements to the client or the court
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Failing to point out case law taking a contrary
position with respect to the an issue
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Failing to communicate adequately with the client,
and update them honestly about their case
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Do we get all the information we need?
Do we review our notes prior to drafting?
Do we advise properly?
Do we draft what our clients want?
Do we then check our notes again prior to
sending drafts to the clients?
How about proofreading?
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Any reason to be concerned?
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Review and proofreading
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Have you considered how the documents may be
challenged?
◦ If challenged, by who? Heirs or others with potential
interest?
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Have you prepared the documents in a timely
manner?
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Have you addressed all contingencies?
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Is this the right plan for the client?
◦ Any potential tax issues to address?
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Is the signing consistent with statutory
requirements?
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In drafting, what citizenship and domicile
Who died and in what domicile
What assets are involved
Where are the assets located
Where are the beneficiaries
If more than one country or beneficiaries from different
countries are involved, you need to research and
understand the laws of succession in the other
countries, and may need to secure counsel in the other
county
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Should accurately reflect the scope of representation,
including;
◦ Who is the client?
◦ What are you doing to help the client?
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As well as the terms of payment
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And other expectations, such confidentiality,
honesty, communication and what will happen
if the attorney needs to withdraw.
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In discussing fiduciaries…
◦ Do we provide all options to each client?
◦ Do we discuss their choices in depth enough?
◦ Do we discuss “fiduciary duties” and provide enough information so
they truly understand the duties?
◦ Do we recommend background checks?
◦ Should we disclose recent publications about problems with
corporate fiduciaries?
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Attorneys are frequently asked to step into this role by
our estate planning clients and as flattering as this is,
attorneys as fiduciaries can work fine or can be
trouble, but…
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You should never appoint yourself in a document
either you or a colleague at your firm drafts for any
client and…
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You should never appoint your firm as a fiduciary,
but if you are asked by others outside the firm
or you are appointed in a matter by the Court,
then:
1. Be certain you have coverage under your
malpractice policy and the firm approves
2. Understand the duties
3. Know that you will be held to a higher
standard than others
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Determine the scope of representation and
who you represent – the PR, or a beneficiary?
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Beware of filing deadlines for taxes (estate,
trust or income) or legal action to secure estate
assets or defend an action
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Understand the dispositive provisions of
the underlying documents
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Understand the elections available to the fiduciary,
e.g., disclaimers, QTIP, Clayton QTIP, § 6166, etc.
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County-specific procedures
◦ Different counties – or different judges – may have
different methods or ways of handling probate matters.
including processes, procedures, appearances or lack
thereof
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Dealing with pro se persons
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The attorney should continue to monitor
developments in the law that may affect the
client’s interest, including;
◦ Changes in tax law and policy
◦ New statutory methods of safeguarding assets
 I.E. “gun trusts” or similar developments
◦ Developments in case law
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Consult with the client periodically to ensure that
the original estate plan is adequate and that the
client’s assets are protected
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Make any changes that may be necessary due to
changes in the clients wishes
◦ I.E., changing or adding beneficiaries, fiduciaries, etc.
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For assistance with the issues
discussed in this presentation,
please contact the law firm of
Engelmeier & Umanah, P.A. at
(612) 455-7720 or (320) 2300375 and ask to speak with our
estate planning attorneys.
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