Ethics News: Dual Representation in Estate Planning and Disqualification of Judges

Yesterday we received the news that two new ethics opinions were adopted by the BOG at its February 23 meeting.

The proposed opinions are listed on the agenda as:

  • Proposed OSB Formal Op No 2018-XX Representing Husband and Wife in Preparation of Estate Plan Involving Waiver of Elective Share; and
  • Proposed OSB Formal Op No 2018-XX Disqualification of Judges

Here are some key excerpts:

Husband and Wife Representation in Estate Plan Involving
Waiver of Elective Share

No conflict exists where lawyer provides general information to clients

Providing general information about the elective share does not create a significant risk that Lawyer’s responsibility to one client will be materially impaired by his responsibilities to the other.

If waiver benefits one client more than the other, dual representation is perilous at best and most likely a conflict

Were Lawyer to represent both spouses with respect to an agreement to waive the elective share, Lawyer would be literally representing both sides of an agreement likely to benefit one client more than the other. Such conflict may be waivable in limited circumstances, but it is perilous…. [The] more important the elective share appears to be to either spouse, the less likely the conflict is to be waivable, and vice versa.

Confidentiality and attorney-client privilege weight heavily in determining whether dual representation is available

Comment 30 to ABA Model Rule 1.7 notes that “[a] particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality.” Attorney-client privilege is typically waived among clients who are jointly represented. OEC 503(4)(e). Such lack of confidentiality may make it difficult for Lawyer to explore whether one spouse has concerns about waiving the elective share, since that spouse may be reluctant to fully share those concerns with the other spouse. That, in turn, impairs Lawyer’s ability to fully advise each spouse.

Later invalidity of the dual representation may affect the estate plan

In addition to potentially impairing the lawyer’s ability to represent the spouse who might object to waiving the elective share, the conflict also creates risk for the other spouse. A spouse may make certain estate planning decisions based on what he or she believes to be other spouse’s waiver of the elective share. A later finding that the waiver was invalid, due to the attorney’s conflictive representation, would likely frustrate the decedent’s estate plan that counted on that waiver of elective share.

My two cents

The dual representation scenario laid out by this opinion is one of those situations where it may be possible to go forward with informed consent confirmed in writing, but – and its an awfully big but – it isn’t smart from a malpractice avoidance point-of-view. This is a thoughtful opinion that takes the time to spell out the many ways that husband-wife representation can go awry. What starts out friendly takes a turn. And as the opinion states, if consent to the dual representation is later invalidated, then what? That elephant in the room you’re sensing is a legal malpractice claim.

Disqualification of Judges

Whether a lawyer has proper grounds for affidaviting a judge is largely a matter of subjective inquiry, so long as the lawyer’s statements are true

Oregon RPCs 3.3(a)(1), 8.2(a), and 8.4(a)(3)-(4) prohibit lawyers from making any false statements in an affidavit for change of judge.The critical issue, therefore, is whether Lawyer can truthfully state in an affidavit under ORS 14.260 that: (1) Lawyer believes Defendant or Lawyer cannot receive a fair and impartial trial or hearing before Judge X; and (2) Lawyer is filing the disqualification motion in “good faith and not for the purpose of delay.” As far as the Oregon RPCs are concerned, these are subjective inquiries.

Lawyer can only consider impact of a motion to disqualify on lawyer’s own credibility and reputation to the extent it may impact lawyer’s representation of the client

Lawyer must evaluate whether to file an affidavit for change of judge on a case-by-case basis, without regard to lawyer’s personal interests or the interests of others. Lawyer may consider only the impact that seeking disqualification of Judge X could have on Defendant’s case. Lawyer may not consider the effect, if any, that seeking Judge X’s disqualification could have on Lawyer’s own practice, or on Lawyer’s other current or future clients or cases.This is not to say that Lawyer may never consider the potential impact a disqualification motion would have on Lawyer’s own credibility, reputation, or relationship with Judge X or other judges in ABC County. Lawyer may ethically consider such factors to the extent Lawyer believes they could impact Lawyer’s representation of Defendant.

Lawyers must reasonably consult with clients regarding motions to disqualify

Lawyer has a duty under Oregon RPC 1.2 and 1.4 to reasonably consult with Defendant about that decision. In doing so, Lawyer must disclose sufficient information for Defendant to intelligently participate in a discussion about whether to file an affidavit for change of judge.In some situations, however, a lawyer may need to decide about filing an affidavit for change of judge without any reasonable opportunity to consult with the client beforehand—such as when the lawyer faces an impending deadline or when applicable rules or substantive law requires the lawyer to either file the affidavit immediately or risk waiver.

Lawyers are ethically permitted to make the final decision about seeking disqualification

[The] lawyer is ethically permitted to make the final decision as to whether to seek disqualification, even over his or her client’s objection, provided the lawyer has adequately consulted with the client, as discussed above.

As yet, the opinions have not been formally published on the OSB website.

All Rights Reserved 2018 Beverly Michaelis

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