The Oklahoma Bar Journal November 2024

Code of Professional Responsibility. For example:

As a representative of clients, a lawyer performs various func tions. As advisor, a lawyer pro vides a client with an informed understanding of the client’s legal rights and obligations and explains their practical impli cations. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As an eval uator, a lawyer acts by examin ing a client’s legal affairs and reporting about them to the client or to others. 38 Rather than engaging in a scatter shot discussion of multiple rules and issues, I limit my discussion to Rule 1.14 , providing, in pertinent part: When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-law yer relationship with the client. When taking on an atypical client, 39 Rule 1.14 requires an attorney to do a modified capacity assessment. Done correctly, this involves a two-pronged test. First is an assessment of whether the client has the capacity to enter an attorney-client relationship to begin with. Second, does the client have the capacity to engage in the transaction (estate planning) comprising the representation? This should be a broad-ranging, holistic inquiry with assumptions withheld until completion. For

influence is not alone suffi cient to authorize the infer ence that such influence has, in fact, been exercised. Undue influence that inval idates a will must be some thing that destroys the free agency of the testator when the instrument is made and executed and that in effect substitutes the will of another for that of the testa tor. It is not sufficient that the testator was influenced by the ordinary affairs of life or that he was surrounded by relatives and friends in confi dential relations with him at the time of its execution. 37 The Ethical Imperative The ethical issues an attorney faces when dealing with estate plans cover a lot of ground and could serve as a topic for a separate article on their own. Issues of professional competence, zealousness and loy alty to clients come up repeatedly. In addition, the practice itself tran scends all phases of a legal practice as set out in the preamble to the

albeit an older person who is recovering from alcoholism (an atypical client, though one whose disability may have been more historical than contemporaneous) choosing not to leave her estate to a natural heir (nonnormative dispo sition) and putative influence of an interested purpose (availability of a pretextual reason to reject the testa trix’s decision in favor of a “natural object of her bounty”). In addition, based simply on the facts related in the opinion, the result seems at odds with, or at least less heedful of, the testator’s intent than with cases such as Canfield v. Canfield . 35 In Canfield , the court held that “the word ‘undue’ when used to qualify ‘influence’ has the legal meaning of wrongful ... but influ ence acquired through kindness is not wrongful.” 36 More specifically: Suspicion, conjecture, pos sibility or guess that undue influence has induced a will is not alone sufficient to defeat the probate of a will. Power, motive or oppor tunity to exercise undue

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL