[WSBAPT] Attorney as PR

Thu Jul 7 11:56:17 PDT 2022

This is specifically addressed in RPC 1.8 comment 8, pasted below in italics (which is from the ABA Model Rules (https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/comment_on_rule_1_8/) and is in place in Idaho as well, for example).

I think many will be quite surprised to see that RPC 1.8 permits – upon informed consent – even SOLICITATION of such fiduciary positions. (Insane seeming perhaps, but there you are.)

I do not solicit or advertise for fiduciary assignments, and it certainly is not my primary practice. But living in what WSBA refers to as a “legal desert,” I felt it my obligation to consider this issue more closely a few years ago.

My malpractice carrier, ALPS, didn’t bat an eye even upon inquiry – go read your policy; it’s covered probably more than you’d guess.

My own view is that this is about geographically available fiduciary options (including their costs and clients’ willingness to use them), a lawyer’s temperament and skill set (“Do you like MATH and TAXES? A LOT? 😉 Are you patient and communicative? Are you nice? How about to those not as smart as you?”), exquisitely careful drafting (e.g., resign/appoint clauses, non-judicial successor appointment options, etc.), and a host of other factors that any thoughtful fiduciary must consider.

[RPC 1.8] does not prohibit a lawyer from seeking to have the lawyer or a partner or associate
of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary
position. Nevertheless, such appointments will be subject to the general conflict of interest
provision in Rule 1.7 when there is a significant risk that the lawyer’s interest in obtaining the
appointment will materially limit the lawyer’s independent professional judgment in advising the
client concerning the choice of an executor or other fiduciary. In obtaining the client’s informed
consent to the conflict, the lawyer should advise the client concerning the nature and extent of the
lawyer’s financial interest in the appointment, as well as the availability of alternative candidates
for the position.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Tom Westbrook
Sent: Wednesday, July 6, 2022 2:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Attorney as PR

Agree, and when I have done the informed consent agreement I make it clear that I did not want to act as PR but the client was adamant that they wanted me to so act, along with other stuff.

Sincerely,

Tom

Thomas J. Westbrook
Attorney at Law

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Kailei Feeney
Sent: Wednesday, July 06, 2022 12:32 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Attorney as PR

I think it would involve informed written consent, as an anticipated future business relationship with client.

Kailei
Kailei B. Feeney
Attorney-at-Law
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of michael westseattleattorney.com<http://westseattleattorney.com>
Sent: Wednesday, July 6, 2022 10:25 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Attorney as PR

There is a BAR ethics opinion on this - its OK. Mike

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Brent Williams-Ruth <brent at williams-ruthlaw.com<mailto:brent at williams-ruthlaw.com>>
Sent: Wednesday, July 6, 2022 9:45 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: [WSBAPT] Attorney as PR

Client (that I am not connected with in any way) has asked that I serve as the back-up PR to the one person that they have.

Would appreciate hearing from colleagues as to your feelings on this - I guess I have always taken the position that as an attorney I should not have any role in the estate other than as the legal role of counsel. If you don't want to share your thoughts with the group - but still are willing to share - please email me directly brent at williams-ruthlaw.com<mailto:brent at williams-ruthlaw.com>

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

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