Fiduciary Duty: A New Ethical Paradigm for Lawyer/Fiduciaries

Abstract

The modem academic trend, as embodied in the Uniform Probate Code and the new Uniform Trust Code, has been to move from an interventionist model of probate toward a minimalist approach to judicial intervention. That model may not be working when it comes to lawyers acting as fiduciaries. The ethical issues and monitoring problems inherent in the confidential relationship that characterizes the attorney/client/fiduciary relationship may warrant more, rather than less, intervention. These monitoring problems and the underlying issues of conflict of interest are particularly acute when the lawyer acting as fiduciary drafted the instrument in which he or she was named. Traditional rules of fiduciary and agency law inform the attorney/client relationship as a whole and become even more pertinent when attorneys move from a general attorney/client relationship to a more “statutory” fiduciary relationship with a client or his or her beneficiaries as executor or trustee. This Article examines how those rules should inform a choice of appropriate ethical models for drafting attorney/fiduciaries.

Keywords: probate, utc, rules of professional conduct, drafting fiduciary, estate planning, undue influence, trusts, personal representative