Attorneys in the course of providing their services face legal malpractice risks arising from allegations of negligence by clients who claim a breach of contract or fiduciary duty. In fact, lawyers, according to the American Bar Association, have a 4%-17% chance of being sued every year, largely dependent upon their jurisdiction and practice area.
One area of practice in recent years that has experienced a hotbed of legal malpractice activity is estates, trusts and wills. The high frequency level of claims in this area is in part due to developments in case law in most jurisdictions where the ability to bring a legal malpractice suit against an attorney has been expanded to include persons other than the lawyer’s client. Plaintiffs need only show that they have a reasonable expectation that they would benefit from the services rendered by the attorney. With estates, trusts, and wills, plaintiffs are typically beneficiaries who sue after learning that the deceased had made changes in the original documents regarding the distribution of assets and property which negatively impacts them.
Family members, for example, who have been removed from a will may allege that the testator (a parent) had diminished capacity or competency or was under undue influence when he or she requested changes to a will. They will pursue legal action against the parent’s law firm claiming there was a reasonable expectation that they were going to benefit from its legal services, even though they aren’t the firm’s client. The children will claim the attorney handling the case should have known that their parent (the client) was not in a position to execute changes to the will because he was either incapacitated or under duress and manipulated by others.
There are several best practices that law firms and attorneys should employ to mitigate the risk of a legal malpractice suit in the area of estates, trusts and wills. These include:
- As with any legal representation, the first line of defense is drafting an engagement letter. The letter should clearly outline the scope of legal services the law firm is providing and disclose that anything outside these services is not the responsibility of the firm. An engagement letter should be included before the original will is drawn and, if there are any changes made to a will, a new engagement letter should be written or an addendum drafted outlining the changes.
- It is an attorney’s responsibility to ensure that the testator has the requisite testamentary capacity. If there is a question of the testator’s competency in requesting changes to a will or estate, the law firm may find it prudent to have the client undergo a competency exam. Some firms will run through standard questions to test the client’s competency at the time of execution of the new will and videotape the interview for posterity.
- In the event there is a question of undue influence on the client, before an attorney proceeds with the testator’s requested changes, he or she can take several precautionary steps. The attorney may want to speak to a client privately to get a sense of how credible his desire is to make the changes. The attorney can reach out to general counsel or an ethics counsel if one exists at the firm, or he can call the state bar. Another viable resource is to call a legal hotline for advice. RPS’s Lawyers Professional Liability insurance (LPL) program provides a risk management hotline staffed by law firm Hinshaw & Culbertson LLP for insureds.
Minimizing the risk of malpractice claims in the estate, wills and trust field is possible through the use of best practices and procedures. In addition, securing the proper LPL coverage in the event of a claim is integral to a sound risk management program. RPS’s LPL program is designed for small to mid-size firms and provides a number of key coverage features. For more information about our program, please contact us.