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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3352
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Is there a conflict of interest if the attorney representing

Resolved Question:

Is there a conflict of interest if the attorney representing my uncle in a trust distribution is married to one of the trust's beneficiaries? Seems to me there is.
Submitted: 11 months ago.
Category: Estate Law
Expert:  LegalGems replied 11 months ago.

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! Often times, a trustee is in fact related to the beneficiary(ies), as generally one sibling, a spouse, or a close relative/friend will be appointed trustee. The issue is whether the trustee is able to impartially exercise their responsibilities without "favoring" one beneficiary over another. A trustee owes a fiduciary duty to all beneficiaries, and they are not allowed to "self deal", this definition also permitting someone to receive more favorable results due to their relationship to the trustee.

LegalGems :

However, this question seems to involve the trustee's attorney, and the trustee's attorney is married to a beneficiary. This opens up the Professional Rules of Conduct. Generally, any potential conflicts of interest needs to be disclosed, and Agreed to in writing by all concerned parties. Failure to do so can expose the attorney to sanctions, which can include disciplinary action.

LegalGems :

I am downloading the rules to reference. One moment please.

LegalGems :

Thanks for your patience. Here is the rule requiring disclosure: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3310.aspx

LegalGems :

So, while most attorneys will avoid any appearance of a conflict, often times an attorney, particularly in estate law, can find him/herself in such a position. The key is disclosure and consent.

Customer:

Hello and thank you. When you say the conflict of interest must be disclosed and agreed to in writing by all concerned parties, does that include all beneficiaries in the trust, or just my uncle, the trustee?

LegalGems :

The rules don't really address situations as particular as this. Generally, the attorney would call the ethics hotline and ask for advice. Most would err on the side of caution and disclose to all parties-everyone. However, a court could construe it as narrowly as between the attorney and the uncle.

Customer:

Wow, it seems like it should be more clear-cut. How do I proceed with my concerns, or should I wait and see what happens?

LegalGems :

The attorney could avoid any issue by acting cautiously; but the thing is- the attorney has to advise the uncle on trust distribution; and his wife will benefit if s/he provides certain advise that would favor the wife; and this would be at the detriment of the other beneficiaries. It's not something most attorneys would feel comfortable with without full disclosure/consent, simply becasue attorneys are held to a higher standard of care. For example, in many jurisdictions, a "normal" (no pun intended) person can waive negligence; an attorney cannot. We are held to a higher standard. So even if we don't practice a certain area of law, it is presumed that we have knowledge of that area.

Customer:

I understand. I have voiced my concerns with my sister (that didn't go over so well) Must I hire my own attorney to proceed?

LegalGems :

You could always do it in pro per (self represented) but that is never recommended. However, if the court concludes that the attorney is acting properly, then they will maintain the status quo. It really comes down to the particular judge, as to what they will rule on a grey issue such as this.

Customer:

Much to think about. Thank you for your help.

LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3352
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
LegalGems and other Estate Law Specialists are ready to help you

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