Estate Planning Attorney Potential Conflicts Of Interests When Later Providing Representation In Disputes And Administration – Fiduciary Trust International

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Fiduciary Trust International of California v. Superior Court (Brown) (California Court of Appeal Case No. B247441, July 31, 2013).

Greetings. The following is a summary discussion about the Court’s decision in Fiduciary Trust International.

The Court held that under the circumstances of this case that a law firm that did estate planning for a husband and wife was disqualified due to conflict of interest from representing the trustee of the husband’s trust in a dispute with the representative of the wife over from which trust or pot of money estate taxes would be paid. The case reminds attorneys that when they provide estate planning services they need to be careful about potential and actual conflicts of interest not only when jointly representing two or more people with respect to their estate planning but also subsequently if the same estate planning attorneys are providing services in the context of administration or disputes. These cases and situations should be evaluated on a case by case basis.

The Court’s decision in Fiduciary Trust International provides lengthy discussion and analysis relating to conflicts of interest in the context of estate planning and a subsequent dispute between the husband’s estate planning and his provisions and the wife’s estate planning and her provisions. And it is also reasonable to believe and conclude that the original estate planning law firm and its records also might be called upon to provide evidence as to the provisions in question and the intentions of the husband and wife.

I also found important the Court’s comments that (1) it is also important that the Rules of Professional Conduct are also intended to protect the integrity and public trust in the legal profession, not just to regulate or apply to the specific situation in question; and (2) even if the potential for conflict is originally disclosed to the multiple parties, “if the potential adversity should become actual, the [attorney] must obtain the further informed written consent of the clients.”

Dave Tate, Esq. (San Francisco)