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Bar News - July 17, 2009

Ethics Committee Issues 2 Opinions

Drafting Lawyer Acting as Fiduciary for Client Opinion #2008-09/1

When drafting various estate planning documents, New Hampshire attorneys are frequently requested by their clients to act in one or more fiduciary roles. The drafting attorney may, at the request of the client, be inserted as fiduciary in the document or documents being drafted by that attorney, provided that:

(1) there has been adequate disclosure of information to the client, as required under rule 1.4; and

(2) the attorney makes a determination as to whether the personal interest of the attorney in being a fiduciary would require compliance with Rule 1.7 (b) and that the attorney may continue to exercise independent professional judgment in recommending to the client the best choices for fiduciaries under Rule 2.1. In order to document compliance with these Rules, it would be the best practice for the attorney to confirm in writing the "informed consent" of the client to the selection of the drafting attorney as the named fiduciary.

It is ethically impermissible for an attorney to name that attorney, by default, or require the client to appoint the attorney as a fiduciary, in a document drafted by that attorney.

In the event that the drafting attorney actively advertises and solicits clients to consider using the attorney as a nominated fiduciary in documents drafted by that attorney, the relationship that results from such advertisement and solicitation may constitute a "business transaction with the client" and thereby require compliance with the more stringent Rule 1.8 (a).

Remedial Measures Under Rule 3.3 – Opinion #2009-09/3

Although attorneys are required to maintain strict confidentiality of client information, attorneys also are required to be truthful to the tribunals in which they appear. As a result, there are occasions when attorneys must take steps to remediate statements made to the tribunal on behalf of a client or by a client regardless of potential harm to the client’s interests. If remediation is required, it must be done promptly.

The quoted passages are from the annotations of each opinion, prepared by the Ethics Committee. Read these opinions. Ethics Committee opinions and information is found under the Legal Links button on the left-side of any page on the website.

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