This section has two parts: (1) laying out the process when there is an ethical rule violation, and (2) describing the main ethical rule violations in estate planning. It is important to know that “the dismissal of a bar complaint does not necessarily preclude a right to file a lawsuit for substantive relief.” Matter of Levine, 174 Ariz. 146, 158, reinstatement granted, 176 Ariz. 535, 863 P.2d 254 (1993).
Anyone can bring a claim when a lawyer violates rules of professional conduct —clients, beneficiaries, other attorneys, etc. The State Bar of Arizona (Bar) reviews all claims of rule violations. See http://www.azcourts.gov/attorneydiscipline; see also http://www.azbar.org/LawyerConcerns (the Bar limits claims to violations of rules of professional conduct). While this process is expensive, taxpayers do not pay. It is paid from annual attorney dues. Id.
Furthermore, the Arizona Supreme Court has ultimate jurisdiction over attorney discipline. E.g. Matter of Elowitz, 177 Ariz. 240, 240 (1994); see also In re Creasy, 198 Ariz. 539, 541, ¶ 6, (2000) (the state constitution makes the practice of law is a exclusively within the authority of the Judiciary); see also AZ ST S CT Rule 53. The process for filing a claim against an attorney begins with the Bar, and the Bar investigates and schedules a hearing if the evidence is clear and convincing to show a violation. See http://www.azbar.org/LawyerConcerns/DisciplineProcess. If credible, the State Bar Hearing Committee (committee) considers the matter and makes a decision.
Next, the Disciplinary Commission of the Supreme Court (commission) chooses whether to adopt the committee’s findings. For instance, the commission adopted the committee’s recommendation for disbarring the attorney in Elowitz, finding several rule violations on three separate estate law cases and one DUI case. See AZ ST S CT RULE 42 RPC ER 1.1, 1.2 (a), 1.3-1.5, 1.15, 1.16 (d), 3.2, 3.3 (a), 3.4 (b), 8.1, 8.4; see also Elowitz, at 241. As final arbitrator, Arizona Supreme Court has ultimate authority to review attorney discipline and to impose discipline upon a finding of clear and convincing evidence. See Elowitz, at 240; see also Matter of Pappas, 159 Ariz. 516, 518 (1988). The Supreme Court upheld disbarment in Elowitz after balancing the following factors for imposing sanctions: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors. Id. at 243. Sanctions can be in the form of reprimand, warnings, requiring further education, suspension, disbarment, and fines. “[T]he purpose of lawyer discipline is not to punish the offender, but to protect the public, the profession, and the administration of justice.” Matter of Lenaburg, 177 Ariz. 20, 23 (1993).
Last, it’s worth noting that rule violations are separate from malpractice claims. Rule violations lead to attorney discipline, whereas malpractice leads to client recovery of monetary damages. However, that is not to say they are unrelated. Oftentimes, the same facts that caused injury also violate an ethical rule. For instance, mishandling of client’s funds is both a rule violation and malpractice. On the other hand, there may be an obvious rule violation and yet not enough to prove the elements of malpractice. For example, conflicts of interest might not carry enough to be the proximate cause of injury, while certainly a rule violation that leads to attorney discipline.
General rule violations are: mishandling of client’s funds, failure to communicate, dishonesty, conflicts of interest, and lack of diligence. See http://www.azbar.org/LawyerConcerns. Estate planning covers those and more. See American College of Trust and Estate Counsel, Commentaries on the Model Rules of Professional Conduct 154 (5d ed. 2016); access commentary at www.actec.org/publications/commentaries.
Estate planning attorneys most often violate the following rules:
The rules are:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ER 1.1.
“A lawyer shall act with reasonable diligence and promptness in representing a client.” ER 1.3.
The lawyer’s competence is a good starting point when assessing a claim because other violations come when a lawyer lacks the ability to handle an estate matter. For instance, a lawyer can overcome a lack of knowledge through associating with a more seasoned attorney, but this can also create confidentiality and conflicts issues. Id. editor’s notes, comments 1 and 2; see also See ER 1.6-1.8, and below sections discussing. Also, lawyers with less skill and knowledge must be careful not to charge an unreasonable fee when expending more time and effort than a reasonably seasoned attorney in the field. See ER 1.5. As a solution, the lawyer should get their client’s informed consent to limit their scope of representation to areas the lawyer is competent. See ER 1.0 (e), and ER 1.2 (c).
Furthermore, a lack of competence is no excuse to lack diligence and promptness in representing a client because a lawyer can often achieve the required level of competence through diligent study and preparation. See ER 1.1 editor’s notes, comment 4. For instance, newly admitted attorneys have reasoning skill and the ability to prepare effectively, but they must determine when they need a more experienced attorneys on estate matters because of the complexity involved.
In one particular example, a lawyer was incompetent to represent a $4 million dollar estate “when he failed to provide sufficient direction to the administrator or oversight of the administrator’s actions as administrator and when he failed to seek review and approval of the attorney fees paid from the estate account.” In re Alig, 285 Kan. 117, 120–21 (2007). Lack of experience in probate matters was another factor showing his incompetence. Id.
A lack of competence often shows up in other ethical duties, such as knowing when there is a duty to communicate.
A lawyer must (i) keep clients reasonably informed of the matter; (ii) promptly comply with reasonable requests for information; (iii) promptly inform the client of anything requiring informed consent; and (iv) explain a matter so the client can make informed decisions. See ER 1.4.
All of these duties come into play with estate planning. Since the process of preparing documents is lengthy and involves multiple drafts, attorneys must keep their clients informed of the schedule and what is needed for the next meeting. Consequences ensue if the attorney causes unnecessary delay through lack of communication. For instance, a client might die between appointments, resulting in intestacy, which leads to unnecessary losses through a more costly process, and foreseeable beneficiaries (i.e. friends) unable to inherit. Attorney communication prevents so much harm!
Several ethical rules require informed consent. For instance, association and fee splitting requires informed consent. Informed consent is an “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See ER 1.0 (e). Sometimes the rules require this agreement is to be confirmed in writing, such as when there is fee splitting or association. See ER 1.5 (e); see also ER 1.7 comments  and .
Furthermore, attorneys advising fiduciaries must reasonably inform them of matters that have potential liability for the fiduciary. This includes how a personal representative administers an estate and other areas of fiduciary liability discussed below.
Last, since representation becomes dormant after execution of estate documents, it is good practice for the lawyer to have a letter explaining how it is the client’s responsibility to initiate when to continue representation. Otherwise, the lawyer risks liability and claims of a failure to communicate when there are changes to the law that negatively affect the client.
(C) Unreasonable Attorney Fees. See ER 1.5.
First, the lawyer must communicate the costs for his or her services in writing, before or within a reasonable time after representation begins, except when charging a regularly represented client the same amount, while avoiding the loss leader approach of cheapening services to get clients because it usually leads to negligence.
Next, the central issue of attorney’s fees is whether the attorney charged a reasonable fee. Eight factors help determine if the fee is reasonable (mnemonic—WE NOT CAL):
Whether fee is fixed or contingent;
Experience, reputation, and ability of lawyer;
Nature and length of professional relationship;
Other employment prevented by the work;
Time and labor required;
Customary fee in the locality for similar services;
Amount involved and results obtained; AND
Limitations imposed by client or case.
Flat fees can be reasonable as long as the lawyer does not exceed the agreed upon amount. The rule prohibits charging or collecting an unreasonable fee. For example, the attorney in Isler violates the rule when collecting $450 over the agreed amount. While the attorney probably could have avoided violation if he returned the money right away, the Supreme Court upheld the violation when the attorney waited nearly five months and after arbitration before returning the fee.
Estate lawyers usually charge an hourly rate for the lawyer and assistants. This triggers other potential ethical rule violations, namely ER 5.3 and 5.5 dealing with assistant oversight and unauthorized practice of law. It’s also worth noting that assistants for estate planning are typically more expensive than general practice paralegals because they have added accounting and tax knowledge, plus an array of other services requires. Also, an experienced estate attorney not only has a reputational and skill advantage, but also knows the customary fee of the area. For instance, what other similarly experienced attorneys in Scottsdale charge.
Furthermore, there is the issue of how Arizona courts view attorneys charging a percentage of the probate estate. Aspiring estate attorneys might think estate law is especially lucrative because they can get a percentage of a rather large probate estate. While Arizona courts allow paying attorneys a percent of the probate estate, it runs the risk of violating ER 1.5 because paying a percentage of a large probate estate is easily excessive, and excessive fees must overcome a higher standard, where they are only allowed “if extraordinary services were necessarily performed.” So, while there is no statute or decision restricting percentages of the probate estate, attorneys accepting a percent of the estate have this standard added to the reasonableness test. For instance, Wright’s Estate was “unusually complicated … [where] … records were contained in several cardboard boxes, no accountings … properties were lost through tax sales, some improved parcels were liabilities rather than assets since the dilapidated condition of the improvements made them dangerous; rents and dividends had been collected by the surviving spouse; no tax returns had been filed…The sales were all advantageous to the estate,” which amounted to extraordinary services performed by the attorney, and the services were necessarily performed because “… the appellant engaged in obstructionist activities which delayed the efficient progress of the administration.” This instructs us that charging a fee based on percentage of the probate estate is unwise, unless the attorney clearly performed extraordinary services that were necessary to the estate.
In addition, accepting property as payment has risks. For instance, lawyers taking property interest as payment must meet ER 1.5 reasonableness and ER 1.8(a) safeguards for entering into business transactions with clients. Along these lines, a lawyer cannot receive a testamentary gift, unless the lawyer is related.
Last, there is the issue of lawyers receiving compensation from the probate estate when working for and/or as a fiduciary. While there may be conflicts of interest, a lawyer can receive compensation for working as a fiduciary and the counsel of a fiduciary, as long as the lawyer is not getting compensated twice for the same work. Courts scrutinize fees paid out of the estate, where “fiduciaries and their attorneys must avoid the pursuit of pyrrhic victories that accomplish little but to bankrupt the protected person.”
The test for allowing attorneys to receive compensation from the estate is “whether the attorney’s efforts were successful and whether the services provided any benefit or attempted to advance the protected person’s best.” It is a case-by-case determination of the probate court, which has jurisdiction over fee determination under the equity doctrine created through statutory exception for paying out of the probate estate.
In the context of a Personal Representative getting advice for the benefit of the estate, the protected person(s) are those who eventually inherit, so the court assesses how the advice benefits the estate. For instance, in Shano, the probate court did not allow paying the lawyer from the probate estate because his conflict of interest led to waste. Therefore, while statute allows for this type of compensation, and the probate court has discretion and authority to award fees, “Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refund.”
Interesting confidentiality issues arise in estate planning. The obvious areas exist between parties working on the different aspects of the estate. This duty is probably the main reason the lawyer should be the leader and not a subordinate role in planning someone’s estate. While everyone must maintain confidentiality, the lawyer has a higher duty than accountants and office staff. The ethical rules impose a duty of confidentiality, where the lawyer risks sanctions if anyone breaches confidentiality.
Other aspects of confidentiality arise when there are conflicts of interest resulting from joint representation. For instance, lawyers often represent husband and wife. It’s rarely practicable for husband and wife to get separate representation. The same principle is true for closely held businesses, representing multiple family members or co-fiduciaries. It is common because it is more cost efficient and sometimes more effective for one attorney to represent several parties with varying interests in the estate plan. However, representing joint clients has the greatest potential for conflicts of interest in estate planning. Husband and wife cases present interesting facts, where hidden conflicts of interest exist with past relationships.
Last, attorney-client communications are confidential without a waiver, which requires informed consent, preferably in writing. However, in some cases differing interests are too great, becoming conflicting interests, and the attorney cannot represent the client. In potential conflicts, the attorney has a duty to give full disclosure, which goes beyond telling the client they are not represented on a particular matter.
In Fogleman, a Personal Representative named Sheffield was also a lawyer working for a firm that represented him in the PR matter, as well as representing the estate’s creditors. The creditors obviously wanted a piece of the life insurance policy, while the testator wanted it separate from creditors.  The trial court found that Sheffield and the firm made most of their fees through taking positions adverse to the successors. This clearly violates A.R.S. § 14-3703 (A), where “the personal representative is a party for the best interests of successors to the estate.” However, the appeals court ultimately found no conflict of interest rule violation because “the successors to the estate were not the personal representative’s or the personal representative’s lawyers’ clients to whom a duty of undivided loyalty was owed.”
While the court did not find a rule violation, it did not say the trial court was improper for removing the attorney from his role as PR. It’s difficult to reconcile that there was no conflict, especially when the court uses the holding in Shano, a case where there was a conflict when the attorney represented a beneficiary with adverse interests while also advising the administrator, materially limiting the ability to carry out the fiduciary duty. Both cases are not favorable to the attorneys in dispute, serving as warnings against potential conflicts of interest, where it is better to avoid an expensive lawsuit fighting a rule violation.
Therefore, the attorney should discuss all implications of joint representation with the client, getting informed consent in writing where necessary, and warning all parties that the attorney is required to withdraw when conflicts of interest do not allow the attorney to provide impartial representation—either directly adverse interests between parties or when representation to one materially limits a lawyer’s responsibility to another.
The goals of estate planning are mostly achieved after death or upon incapacitation. But it takes a sound mind to achieve those goals. The lawyer must maintain a normal client-lawyer relationship with the client, but some clients are incapable of estate planning representation and need guardianship and/or conservator appointments. For instance, a client who develops severe dementia is no longer capable of making a will or setting up a trust. Saving the expense of a guardian/conservator, this person can have family or friends care for them until they die, at which time the estate passes through intestacy. Furthermore, while there is early stage dementia, there are other less anticipated situations that make a younger person incapable of planning their estate. That is why it is best for everyone to plan ahead while they have a sound mind.
More often the individual has diminished capacity that does not make them incapable of making a will. For instance, in the section below on fiduciary liability, we discuss how the law gives added protection to vulnerable adults, but these individuals most likely meet the capacity requirement. However, vulnerable adults can have diminished capacity, which triggers other ethical rules, such as confidentiality when a lawyer needs to share confidential information to others in order to provide proper care. In Witte v. Witte, the husband wanted access to the attorney-client communications when it mostly took place in the presence of the daughter and son. The Witte court remands to determine if the communication in front of the daughter “was reasonably necessary for the transmission of communication.”
Furthermore, the lawyer is required to treat clients with diminished capacity as normal clients, with all the protections of confidentiality. The only difference is that the lawyer may take protective action, even bring others in, if the lawyer believes the client is at risk of substantial harm. This is meant to empower the lawyer to help, but the lawyer is limited by how much confidential information to reveal: “only to the extent reasonably necessary to protect the client’s interests.”
Last, attorneys advising guardians also assume a duty of care to the ward, where the attorney risks liability for the harmful actions of the guardian. The attorney’s client serves the interest of someone with diminished capacity, which extends all the way to the attorney. In addition, the lawyer is not always responsible for the actions of the guardian. Liability occurs when the lawyer knew or should have known that the actions of the guardian are adverse to the ward’s interests. The principle from the standpoint of ER 1.14 is stated well in Fickett: “the ward’s interests overshadow those of the guardian.” Attorneys advising guardians must give full disclosure to the guardian when the interests of the ward take higher priority than protecting the client’s interests.
Failing to safely keep the client’s property is a common rule violation. This rule violation is also the most obvious case for malpractice because finding an ethical rule violation means there was an injury that the lawyer caused by his mishandling of the client’s property.
Furthermore, there are several examples of mishandling client’s property in estate-planning. For instance, co-mingling funds or mishandling trust accounts. Separate trust accounts are necessary when administering estate funds or acting in fiduciary capacity. The lawyer violates the rule if any of the client’s funds are mingled with the lawyer’s funds. That last sentence is an understatement because attorneys must avoid co-mingling of funds as the plague. Not only avoiding co-mingling, but promptly returning unearned fees and property upon termination.
Lastly, there is the issue of storing documents. The rule requires an attorney to keep complete records of accounting for a period of five years after ending representation. Many attorneys use a file retention program, and review the policy with clients during the engagement letter. Furthermore, holding the original will is considered holding client property. If necessary, it is less risky to hold a copy and let the testator have the original.
As stated previously, estate planning often requires many services. “The issue of what constitutes the unauthorized practice of law frequently arises […] in the context of wills, trusts, and estate planning.” Although the ethical rules do not normally apply to non-lawyers, the lawyer must make reasonable efforts for everyone under their leadership to obey the ethical rules. Failure to adequately supervise non-lawyer staff violates ER 5.3 and leads to an unauthorized practice of law. The Supreme Court also has jurisdiction over those practicing in Arizona who are not licensed in Arizona but are licensed in another state.[91
 See id.
 See Melissa Hutcheson Brown, Estate Planning Malpractice: A Guide for the Alabama Practitioner, 45 Ala. L. Rev. 611, 613-14 (1994).
 Id. (I put them in different order to form the mnemonic. The test determines what is reasonable)
 See In re Isler, 233 Ariz. 534, 538, ¶ 11, (2014) (citing Matter of Burns, 139 Ariz. 487, 491 (1984)); but see In re Connelly, 203 Ariz. 413, 418, ¶ 27-29 (2002) (a flat fee can be more than fees generated by hourly rates without being excessive, while citing Swartz 141 Ariz. at 272-73 indicates the attorney might have to return funds when it’s obviously excessive).
 See ACTEC Commentary on MRPC 1.5.
 See id. at MRPC 5.3.
 See Estate of Davis, 509 A.2d 1175, 1177 (Me. 1986) (with the Maine Probate Code in 1981, the Legislature intended to abolish the prevailing practice of determining compensation for personal representatives as a percentage of the estate and to substitute a system based on reasonable compensation).
 E.g. Matter of Wright’s Estate, 132 Ariz. 555, 559 (App. 1982), disapproved on other grounds by Marvin Johnson, P.C. v. Myers, 184 Ariz. 98 (1995) (disapproving subject matter jurisdiction language).
 See ER 1.8, cmt ; see also ACTEC Commentary on MRPC 1.8; see also Matter of Murphy, 188 Ariz. 375, 379–80 (1997) (attorney used confidential information to benefit firm’s investment and hurt client).
 See ER 1.8(c) (related is broadly defined).
 See In re Estate of Fogleman, 197 Ariz. 252, 256–57, ¶ 9 (App. 2000).
 In re Guardianship of Sleeth, 226 Ariz. 171, 176, ¶ 21 (App. 2010).
 Id. at 177.
 See Shano, at 558 (A.R.S. § 14-1103 expanded the jurisdiction of probate court over granting fees, extending the common fund doctrine of Steinfeld, 15 Ariz. 335, to the probate court, where it was previously only to statute or contract); see also Matter of Estate of Brown, 137 Ariz. 309, 314 (App. 1983).
 See A.R.S. § 14-3720.
 See Brown at 314.
 A.R.S. § 14-3721 (as we saw in Wright’s Estate, “may be ordered” gives the court discretion to award excessive compensation when the estate is unusually complicated).
 See ER 1.6.
 See ACTEC Commentary on MRPC 5.3 (“Even such ostensibly benign uses of nonlawyer assistance such as trash removal, computer and/or photocopier maintenance can pose serious risks for confidentiality and need to be carried out with attention to the lawyer’s professional responsibilities”).
 See id. at (e) (A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client).
 See ACTEC Commentary on MRPC 1.7
 See 2013 WL 4188063 (ASPATORE), 6 (“The failure to recognize conflicts of interest can lead to claims by the client, a third party, or both”).
 See A. v. B., 158 N.J. 51 (1999) (wife was not aware of child from previous relationship and the firm accidentally accepted representation of the custody battle, then it felt the need to disclose the child’s identity to the wife).
 See ER 1.6(a).
 See Shano, at 554.
 See Matter of Neville, 147 Ariz. 106, 113 (1985) (“We adopt the view of the cases which hold that full disclosure requires not only that the lawyer make proper disclosure of non-representation, but that he also must disclose every circumstance and fact ‘which the client should know to make an intelligent decision concerning the wisdom of entering the agreement’”).
 See Fogleman, at 255, ¶¶ 2-7.
 Id. at 256–57, ¶¶ 9-13 (Rebecca Berch wrote this opinion before she was Arizona Supreme Court Justice; Sheffield avoided a conflict of interest ethical rule violation on the technicality that the successor were not his clients, but it seems like a weak section of the opinion because there was a conflict when Sheffield’s firm represented creditors and Sheffield).
 See Shano, at 554-555.
 See ER 1.7 (a).
 See ER 1.14.
 See A.R.S. § 14-2501 (A person who is eighteen years of age or older and who is of sound mind may make a will); see also § 14-10402 A; see also § 14-5506 B.
 See ER 1.14 (b) (“…in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian”); see also ER 1.14 comment  (may not be possible to have ordinary lawyer-client relations).
 See A.R.S. § 14-2101.
 See Matter of Estate of Killen, 188 Ariz. 562, 565 (App. 1996). (“To invalidate a will for lack of testamentary capacity, the contestant must show that the testator lacked at least one of the following elements: (1) the ability to know the nature and extent of his property; (2) the ability to know his relation to the persons who are the natural objects of his bounty and whose interests are affected by the terms of the instrument; or (3) the ability to understand the nature of the testamentary act.”)
 See § 46-456.
 See ER 1.14 (b) (c).
 See Witte v. Witte, 126 So. 3d 1076, 1077 (Fla. Dist. Ct. App. 2012).
 Id. at 1079.
 See ER 1.14 (a).
 See Id. at (b).
 See ER 1.14 (c).
 See Fickett, at 795.
 See Schwartz v. Cortelloni, 177 Ill. 2d 166, 174 (1997) (Illinois test for determining when an attorney owes a duty to a third party is “whether the attorney acted at the direction of or on behalf of the client for the benefit of a third party,” is not the law in AZ but perhaps a guiding principle).
 See ER 1.15.
 See The State Bar and Lawyer Regulation, Ariz. Att’y, NOVEMBER 2001, at 8 (2001) (it is mentioned in two separate bullet points of ways to avoid violations).
 See ER 8.4, cmt. (abuse of trust as trustee suggests inability to fulfill the professional role as attorney).
 See ER 1.15, cmt. .
 See In re Moore, 110 Ariz. 312, 315 (1974) (“commingling of a client’s funds with an attorney’s is a violation of [the ethical rules] [and] is grounds for disbarment, suspension or censure”).
 See § 32:13.Misappropriation of client’s property and commingling of funds, Prof. Resp. Crim. Def. Prac. 3d § 32:13 (misappropriation of a client’s funds is a gross violation of general morality).
 See ER 1.16; see also Matter of Pappas, 159 Ariz. 516, 527 (1988) (Lawyers have an obligation to produce and return funds paid them by clients or to provide documentation to establish that the funds were properly used for the purposes for which they were given).
 ER 1.15 (a).
 See Retention of Client Files Involves Ethical Considerations, Ariz. Att’y, JULY 2000, at 17 (2000).
 In re Estep, 933 A.2d 763, 766–67 (Del. 2007); see also 25 A.L.R.6th 323 (Originally published in 2007)
 See ER 5.3.
 See ER 5.5.
 See State v. Lang, 234 Ariz. 457, 461, ¶ 15 (App. 2014); see also In re Non-Member of State Bar of Arizona, Van Dox, 214 Ariz. 300, 302, ¶ 8 (2007).