The Oklahoma Bar Journal December 2022

they referred. This involvement can take many different forms, including providing information about the new client, paying the attorney for their services to the new client, being present for a con sultation or other meetings with the new client, conveying the new client’s wishes to the attorney or talking with the attorney about desired changes to drafts of the new client’s documents. A fundamental tenet of repre sentation is that an attorney must “exercise independent professional judgment and render candid advice” to the client. 50 Each of the actions described above or other third-party involvement in the estate planning process can affect an attorney’s ability to fulfill that duty so vital to the lawyer-client relationship. Consequently, attor neys should remain mindful of two rules (in addition to confidentiality) that apply to the involvement of non-clients in the representation: Rule 1.8(f) and Rule 5.4(c). Rule 1.8(f) applies when someone other than the client seeks to pay for the attorney’s services. Under this rule, an attorney can only accept compensation from a third party if doing so does not interfere with the attorney’s independent professional judgment, and the client gives their informed consent. 51 Even if a client agrees to someone else paying their legal fees, the arrangement can look suspicious and could increase the likelihood that the will or trust is challenged. 52 It is common for a family mem ber or friend of the client to get involved in ways other than paying for legal services. Where a third party is not supplying payment, Rule 5.4 requires simply that an attorney not permit the party to “direct or regulate” their profes sional judgment in representing the client. 53 Unlike Rule 1.8(f), a client’s informed consent is not required

under Rule 5.4(c) (though informed consent will still be necessary to waive confidentiality if the third party is to receive any details relat ing to the representation). In addition to conflict-of-interest concerns, the participation of someone other than the client in the estate planning process should trigger a heightened concern of undue influence. Involvement in such intimate, important deci sions “afford[s] [the third party] a unique opportunity to influence the disposition” of the testator’s estate. 54 The mere presence of another person can also affect what a client is willing to tell their attorney or mask signs of nefarious action. If a client wants a friend or family member to sit in on a meeting, you should, at minimum, visit with the client privately for a while before invit ing the other person to join you. Doing so can help establish that the client received “independent and competent advice” and rebut a later claim of undue influence. 55 There is no litmus test for determining the appropriate level of third-party involvement in the estate planning process. 56 However, such participation can make a will contest based on undue influence more likely to succeed. 57 It is there fore good practice to explain these risks to your client before allowing a third party to get involved, par ticularly if you have a preexisting relationship with that person ( e.g. , they are also a client of yours). In fact, attorneys arguably have an obligation to share this information with the client under Rule 1.4(b) as it could impact their decision whether to engage the lawyer at all. 58 Back-End ‘Evidentiary’ Implications Ethical pitfalls still arise even after a client’s death. As noted above, the estate planner can play a vital evidentiary role in the

with someone about a matter of undue influence could trigger a mandatory reporting obligation under the Protective Services for Vulnerable Adults Act. 45 (Lawyers are exempt from these obliga tions.) The involvement of law enforcement can be (and typically is) undesirable, even traumatic for a client. It can lead to family strife, court action, changes in living arrangements and other conse quences that upend the client’s life. 46 For the sake of the client, consider whether less disruptive measures are available before sharing your concerns and dis closing confidential information to a third party, even if you are authorized to do so. Conflicts of interest . Rule 1.7(a) forbids a lawyer from undertaking a representation that is “directly adverse” to another client or if there is a “significant risk” that the representation would be “materi ally limited by the lawyer’s respon sibilities to another client.” 47 This obligation is rooted in the duty of loyalty, which is an “essential ele ment[ ] in the lawyer’s relationship to a client.” 48 Conflicts of interest are often imagined in terms of representing parties who are on opposing sides of a controversy or who are generally antagonistic toward one another. Yet, nonadver sarial practice is fraught with con flicts as well, and estate planning is no exception. 49 One of the most common such conflicts arises when a client asks their attorney to prepare a will, trust, power of attorney, etc., for someone else. It is fine for a client who is happy with their attorney’s services to refer family members and friends. That is how many estate planners keep the lights on. But ethical problems begin to bubble up when the referring client wants to be involved in the planning process for the person

20 | DECEMBER 2022

THE OKLAHOMA BAR JOURNAL