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Conflicts of interest in will drafting

All lawyers in Massachusetts must follow the Massachusetts Rules of Professional Conduct, which provide the standards for legal ethics and professional responsibility.

Lawyers who practice estate planning in the state must be especially careful to follow the ethical guidelines set forth in the rules because this is an area of law in which attorneys often assist multiple members of a family as well as their own family members.

An example of a potential ethical concern that could arise was addressed by the Massachusetts Board of Bar Overseers. The board considered a hypothetical situation in which an estate planning attorney was asked to draft a will for a client's uncle.

The situation presents an obvious ethical concern because the lawyer's original client is a potential beneficiary of the will that needs to be drafted. Under the Rules of Professional Conduct, a lawyer must "exercise independent professional judgment" for all clients.

Because the interests of the original client could potentially bleed in to the lawyer's handling of the new client (for whom she is drafting a will), several steps should be taken to make sure that ethical standards are met.

For one, the attorney would have to explain clearly to the original client that she could not protect that client's interests while drafting the will. Both clients would also have to be reminded that attorney-client privilege would mean that anything either client said to the attorney would have to be kept confidential.

If all of the necessary protections were met, the board concluded that it would be possible for the attorney to draft the will for the existing client's uncle without violating the rules.

Unfortunately, not all estate planning lawyers in Massachusetts follow the Rules of Professional Conduct as they should, and estate plans can be thrown out by the court as a result.

For that reason, it's extremely important to work with an estate planning lawyer who knows the rules and follows them closely.

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