The Oklahoma Bar Journal December 2022

issues, this article focuses only on three: competence, confidentiality and conflicts of interest. Duty of competence . The Oklahoma Rules of Professional Conduct (hereinafter, the “rules”) begin by setting forth the most basic duty of any practitioner: competence. A competent attorney is one who has or is able to acquire

when wrongdoing is practiced by someone else. Any discussion of a practi tioner’s responsibilities in this area must recognize the two very different perspectives from which trust and estate lawyers encoun ter undue influence. First is the front end of the estate planning process: consultation, preparation

shifts to the will’s proponent to establish mitigating circumstances showing the free agency of the testatrix was not overcome. The Oklahoma Supreme Court has cited two primary factors suffi cient to rebut a presumption of undue influence: 1) receipt by the testatrix of independent and competent legal advice regarding the disposition of her estate before executing the will and 2) the termination of the confiden tial relationship prior to the will’s procurement. 24 While courts have not foreclosed the possibility of other evidence that could rebut a presumption once raised, there appears to be no Oklahoma cases holding the presumption was overcome absent one of the above two factors. It is also irrelevant whether the influencer benefits personally from the wrongfully procured will. A person’s lack of benefi ciary status does not render them legally incapable of, or excuse them from, exercising undue influence. 25 “The gravamen of undue influence is legal harm from the wrongful exertion of power over the will’s maker rather than the receipt of personal benefit from the offending act of influ ence.” 26 It is not the result of the influence but the influence itself that vitiates the will. THE ETHICAL IMPLICATIONS OF UNDUE INFLUENCE Estate planning attorneys instances, the attorney is the bad actor, having taken advantage of a confidential relationship to procure a gift for themselves or another. 28 This article does not explore the ethics of the attorney as wrongdoer. Rather, our focus will strictly be on the ethical obli gations and pitfalls that may arise figure prominently in undue influence claims. 27 In some

through reasonable study, “the legal knowledge, skill, thorough ness, and preparation reasonably necessary for the representation.” 29 Think of competence as a set of tools. The skill and know-how you currently possess are the tools already in your toolbox. When you are asked to provide representa tion that requires a tool (knowl edge or skill) you don’t have, it is fine to accept the matter if you can buy that tool at, say, The Home Depot (easily acquire it) or borrow it from a friend (associate with a competent attorney). It is much more problematic to take on a project that requires you to rent a crane, use explosives or represent someone in a capital murder trial when you have only ever handled quiet title cases.

and execution. Because the practi tioner’s goal at this stage should be to avoid or prevent undue influ ence to ensure a valid estate plan, I will refer to duties associated with this perspective as “protective” in nature. Second is the back end: after the client dies, when a will is challenged in court. I will refer to these duties as “evidentiary,” given the drafting attorney’s key role as a potential witness in the probate proceedings. Front-End ‘Protective’ Implications For good reason, most of the literature discussing undue influ ence focuses on the protective role of the estate planning attorney. How to identify undue influence, and how to guard against it. While the front end of the planning pro cess implicates numerous ethical

18 | DECEMBER 2022

THE OKLAHOMA BAR JOURNAL