Regulating financial services: estate lawyers and new proposals

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Flatly unlike any number of other individuals and business entities that provide clients with important information and represent them in key areas of life involving families, finances, health and other considerations, estate planning attorneys are held to unquestionably high standards.

That is, they can suffer personally adverse consequences if the performance they deliver is deemed substandard or otherwise deficient.
In some instances, that might mean the commencement of a legal malpractice claim by an aggrieved client. In other cases, it could bring a rebuke or sanction from a state bar.

In other words, and as noted in a recent article on newly proposed rules on so-called “fiduciaries” and their potential impact on estate planning lawyers, those lawyers “already owe their clients a high standard of care and a duty of loyalty.”

The publication Wealth Management asks a pointed question in the above-cited media focus, namely this: Will currently proposed rules that seek to expand the definition of “investment advice” and render its purveyors subject to tougher fiduciary requirements under federal law now encompass attorneys as well as brokers and advisers who work solely within the financial industry?

Again, and as Wealth Management points out, attorneys are already well governed in the roles they play in helping people craft and implement sound estate plans. And as the publication further notes, estate lawyers have not historically been treated as advice-giving fiduciaries “merely because they provide such professional assistance in connection with a particular investment transaction.”

The new and more encompassing fiduciary rules placed on investment advisers that were recently promoted by the U.S. Department of Labor sprang up in direct response to a perceived problem with financial professionals acting inappropriately within their work spheres.

In the most fundamental sense, they are not directed at estate administration attorneys, with the DOL explicitly noting that.

As stressed above, estate attorneys are already closely regulated in myriad ways and, moreover, they bring advocacy backgrounds that combine arduous educational, training, testing and recurrent review to the task of acting in the best interests of their clients.

Given that, it makes no practical difference what new rules might — or might not be — established. Client-empathetic and proven estate planning attorneys already operate as fiduciaries as they seek to routinely fashion best outcomes in every client matter.

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