NYSBA’s Opinion on Drafting Attorney Serving as Counsel to Executor
FACTS
1. The inquirer prepared an estate plan for his client and supervised the execution of a Will in furtherance of the plan. The Will named the deceased client’s nephew executor of his estate. The client has recently died, and the estate is ready for administration. The nephew has asked the inquirer to represent him in connection with the estate’s administration, but the inquirer is concerned because a recent change in the law permits executors to sue estate planners for malpractice, and both the estate plan and the Will were prepared well within any period of limitations possibly applicable to the inquirer’s conduct (meaning that the statute of limitations will not be available as a defense to any claim).
QUESTION
2. In light of Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010), may an attorney who prepared an estate plan for a client agree to act as counsel to the executor after the client’s death?
OPINION
3. On June 17, 2010, in Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010), the New York Court of Appeals overruled a long line of cases in the estate planning field. The overruled cases had held that the doctrine of privity effectively barred the estates of deceased estate planning clients from filing a legal malpractice suit against the lawyers who planned the decedent’s estate. In Schneider, the Court of Appeals held that the executor or personal representative of the decedent “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf.” at 309.
4. Shortly after publication of the Court’s decision in Schneider, a number of authorities speculated on the consequent expansion of an executor’s obligations and liabilities, as well as the obligations and liabilities of lawyers providing estate planning services. Although the Court did not expressly give the estate’s beneficiaries the right to bring a suit for legal malpractice, some commentators suggested that an aggrieved beneficiary might ask the executor to sue a lawyer whose alleged incompetence had caused them to receive less from the estate than they believed they otherwise would have obtained. See, e.g., David Siegel, New York State Law Digest, No. 607, at 3-4 (July 2010). Others questioned whether an attorney could ethically agree to represent an executor in connection with the administration of any estate that the attorney had planned.
The relevant rule: Rule 1.7
5. We begin our analysis with Rule 1.7 of the Rules of Professional Conduct, which states in relevant part:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that … (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation … (2) the representation is not prohibited by law … (3) the representation does not involve the assertion of a claim by one client against the another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
NYSBA Comm. On Prof’s Ethics, Formal Op. 865 (2011).
Special thanks to Bridget J. Crawford (Professor of Law, Pace Law School) for bringing this to my attention.