Chapter 1: Introduction
I. Section II: The Role of the Lawyer, and the Layer Client Relationship
A. Hotz v. Minyard
1. Facts: Attorney Dobson Kept the contents of Mr. Minyard’s will secret from Mr. Minyard’s daughter Judy, who was also a client in good faith.
2. Rule of Law: A fiduciary Relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith.
i. Conflict of Interest-Refers to the ethical problems that arise, or may be anticipated to arise, between an attorney and his client if the interests of the attorney, another client or a third party conflict with those of the present client.
ii. Fiduciary Duty-A legal obligation to act for the benefit of another, including subordinating one’s personal interests to that of the other person
iii. Vicarious Liability-The imputed Liability of one party for the unlawful acts of another
4. Point of Interest: A fiduciary relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith
i. An attorney/client relationship is by nature a fiduciary one.
1. Model Rules of Professional Conduct
i. A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation
ii. A lawyer shall not represent a client if the representation of the client will be directly advised to another client, unless
a. The lawyer reasonably believes the representation will not adversely affect the relationship with the other client
b. Each client consents after consultation
iii. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless
a. The lawyer reasonably believes the representation will not be adversely affected; and
b. The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implication of the common representation and the advantages and risks involved.
2. Mirror Wills are wills made by a couple whereby each will leaves the bulk of his or her estate to the survivor and the survivor leaves the bulk of the pooled estates to their children
C. Barcelo v. Elliott
1. Facts: Attorney Elliott, who had prepared a client’s will and inter vivos trust agreement, was sued for malpractice by beneficiaries of the trust
2. Rule of Law: An attorney retained by a testator or settler to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust
i. Duty of Care-A principal of negligence requiring an individual to act in such a manner as to avoid injury to a person to whom he or she owes an obligatory duty
ii. Inter Vivos-between living persons
iii. Will Beneficiaries-an individual designated in a testamentary instrument to receive specified property upon the testator’s death
4. Points of Interest:
i. Attorney owes a duty only to those parties which the testator clearly intended to benefit
ii. An attorney retained by a testator or settler to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust.
II. Section III: Probate and Non-Probate Transfers
A. Personal Representative-It’s anyone authorized by the court to administer the estate whether pursuant to a will or in intestacy
-Gifts of personal property made in fear of death imminent, requiring delivery and intention to make a present gift, but unlike most other gifts, they are both revocable and conditional (on the donor dying). If the donor changes her mind, she can get the property back. If the donor survives, the gift is automatically revoked.
D. Joint Interests With Right of Survivorship
1. If two parties hold property as joint tenants with right of survivorship (or as married couples as tenants by their entirety), when the first of the two dies, the decedent’s share passes automatically to the survivor—that is the meaning of the words “with right of survivorship—This is none probate
2. Franklin v. Anna National Bank
i. Facts: Prior to Frank Whitehead’s death, he opened a joint bank account with Cora Goodard to facilitate access to his funds
ii. Rule of Law: One claiming adversely to an agreement creating a joint tenancy has the burden of establishing the donor’s lack of intent by clear and convincing evidence
a. Donative Intent-Donor’s intent to make a gift
b. Joint Tenancy-an Interest in property whereby a single interest is owned by two or more persons and created by a single instrument; joint tenants possess equal interests in the use of the entire property and the last survivor is entitled to absolute ownership
i. Joint Accounts at Death-the courts assume
That the depositor did not revoke the survivorship provision during his lifetime