E-STATE PLANNING: Ethically Using Technology in Your Estate Planning Practice

April 21, 2023

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E-State Planning: Ethically Using Technology in Your Estate Planning Practice

The pandemic forced the legal profession to implement technology into our practices in ways we may have never expected.  Depositions, hearings, and even trials were conducted on Zoom.  Notaries witnessed signatures on transactional documents via FaceTime.  But what about a practice area that values in-person client meetings and requires original signatures?  Estate planning traditionally involves multiple paper copies and the duty to maintain original documents indefinitely.  Yet, the modern estate planning practitioner must evolve to keep up with technology as required by the ABA Model Rules of Professional Conduct.

A lawyer’s duty to provide competent representation includes an ethical obligation with respect to technology.  Comment 8 of Rule 1.1 of the Model Rules requires lawyers to be current regarding the benefits and risks associated with relevant technology.  Recent technological developments may impact how best to communicate with clients and safely store their information.  In order to abide by the competency requirements, it may be a good idea to assess these basic practice management elements in the digital age:

  • Client communications – Although lawyers are permitted to routinely communicate with clients via unencrypted email correspondence, be sure to mark your emails as “confidential.”  If you are regularly sending emails or attachments with sensitive information including bank account or Social Security numbers, consult with an IT professional about using an encryption service that will easily interface with your office email.  
  • Storage of confidential data – Given the impracticality of retaining every piece of paper in a physical file, consider reducing your paper files in a way that works for your firm.  While you should, of course, maintain all original estate planning documents, other file materials, along with copies of the originals, can be saved electronically.  By creating searchable PDFs or utiziling software that can search image-only PDFs, you can save yourself valuable fileroom space.  And while you may initially fear losing access to electronic files, rest assured that sophisticated backup systems and cloud servers make this highly unlikely.
  • Retainer agreements – Consider including a provision in your retainer agreement or engagement letter providing for the client’s authorization of the backup and storage of electronic files, including on cloud-based servers.  Be sure to customize and update your engagement letter with technology updates at your firm as they are implemented.

In addition to these practice management tips, check your jurisdiction for recent changes in the law. This is even more important now because some jurisdictions have pushed the traditional bounds of estate planning.  For example,  Arizona, Colorado, District of Columbia, Florida, Idaho, Illinois, Indiana, Nevada, North Dakota, Utah, Virginia, and Washington have recently enacted laws related to the electronic signature of wills, remote witnessing or notarization of wills, or procedures for electronic execution of self-proving affidavits.

Although using new technology in your practice may seem intimidating, get your head out of the clouds and learn how information is stored in the Cloud.  After all, it is your ethical obligation, and your tech-savvy clients will be glad you did.

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Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].

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