SIDEBAR Spring 2018 - 13

MONTGOMERYBAR.ORG

against the estate planning attorney,
under the theory that they stand in the
shoes of the decedent; however, this rule
has not yet changed to include non-client
beneficiaries.
Given the continued rise in these
types of claims and the fact that 80
percent of attorneys (irrespective of level
of experience) can expect to be sued
at least once during their professional
lifetime, trusts and estates attorneys
should be particularly vigilant in
order to protect their clients, as well as
themselves. Beyond keeping abreast of
the law and avoiding scrivener's errors,
the most important protective measure
is direct, frequent and documented
communications and disclosures, as
the greatest number of claims against
attorneys are due to poor communication
or miscommunication.
A trusts and estates practitioner
must clearly and specifically define
the client and scope of services to be
performed in his or her retainer letter.
All communications to the client should
be also documented in writing to the
greatest extent possible. If drafting a
testamentary or inter vivos document, a
careful attorney will insist that his or her
clients clearly document their wishes,
and triple check the instrument to
ensure it matches with the client's wishes.
This "best practices" communication
rule should ideally be extended even
further. For instance, an attorney should
encourage clients to make full disclosures
regarding their estate plan to beneficiaries
and non-beneficiaries alike. This should
be strived for particularly where the
client intends to make disproportionate
distributions of his or her assets, and will
help prevent estate disputes which could
ensnare counsel.
Although there is no way to entirely
eliminate the exposure from these types
of claims, taking considered steps to be
more careful and communicative can
prevent a trusts and estates practitioner
from becoming another malpractice
statistic.

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This article was prepared by Andrew Jones
and Benjamin Oxenburg of the New York Citybased law firm of Furman Kornfeld & Brennan
LLP. Andrew and Ben work as part of a team of
15 lawyers and paralegals devoted to the defense
of attorneys and other professionals in malpractice
and disciplinary matters, as well as the defense of
construction and personal-injury accidents. For
more information about the above topic or the
authors, please visit: www.fkblaw.com.

We trust that the above article was useful
and thought-provoking; however, please note
that it is intended as a general guide and
opinion only, not a complete analysis of the
issues addressed, and readers should always
seek specific legal guidance on particular
matters.
For more information on LPL coverage
generally, contact USI Affinity today.

SPRING 2018 13


https://montgomerybar.org/ http://www.runwellsolutions.com http://www.fkblaw.com

SIDEBAR Spring 2018

Table of Contents for the Digital Edition of SIDEBAR Spring 2018

SIDEBAR Spring 2018 - 1
SIDEBAR Spring 2018 - 2
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https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSpring2020
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARWinter2019-2020
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARFall2019
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSummer2019
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSpring2019
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARWinter2018-19
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARFall2018
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSummer2018
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/LRSINSIGHT
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSpring2018
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARWinter2017-18
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSummer2017
https://www.nxtbook.com/hoffmann/MontgomeryBarAssociation/SIDEBARSpring2017
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