Determining the Start and End of Attorney-Client Representation
Many attorney-client representations have a definite beginning and a definite end. For example, in the personal injury context, the representation typically ends when the matter is resolved. In some other situations the end of representation may not be so clear, for example, in business matters when the attorney was initially engaged to draft contracts for a start up business. It is therefore a good practice to let the client know when the attorney considers the matter resolved and the representation having come to an end. Even better, this could be determined at the start of the representation.
Client Document Retention: Changing Practices and Responsibilities
A related matter is the retention of client documents by the lawyer. In the past this was a common practice. Arguments advanced in favor were that there is less risk of loss, destruction, and alteration of the documents. However, by retaining the documents the lawyer assumes the responsibility as record custodian for an indefinite period of time. Times have changed and many clients do not die in the community where their papers were signed. Therefore, many lawyers will only retain documents for a limited period and explain the record retention practices in the engagement letter. Importantly, that records are being retained for a period of time does not by itself perpetuate an active attorney client relationship.
Duty of Attorneys to Inform Clients About Changes in the Law
Estate planning is often conducted over several years and is open ended unless agreements to the contrary were made. This may impose on the attorney a duty to keep the client reasonably apprised of significant changes on the law that affect estate planning. While there is no California authority which makes this mandatory, many attorneys choose to send a disengagement letter to their clients once the work is done stating that their representation has ended. This avoids the need to keep “clients reasonably apprised of changes of the law” and also avoids other potential misunderstandings and conflicts. Some trust and estate lawyers have newsletters that they periodically send to their clients to keep them updated. Conversely, the periodic mailing of a newsletter does not by itself indicate that an ongoing attorney client relationship exists.
See also:
The trust and estate attorney as “family lawyer” – Joint Clients
The trust and estate attorney as “family lawyer” – Separate Clients
Reference
Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel: Fourth Edition. California Lawyers Association, Trusts and Estates Section, 2020.
Engaging a trust and estate lawyer – Defining the scope of representation
