Planning for a Diverse Family: Cultural Competence Within the Model Rules of Professional Conduct

“Planning for a Diverse Family: Cultural Competence Within the Model Rules of Professional Conduct,” that is the subject of today’s ACTEC Trust and Estate Talk.

This is ACTEC Fellow Connie Eyster of Boulder, Colorado.

Cultural competency is a critical skill for an estate planner seeking to effectively serve today’s increasingly diverse client base. In this episode, we examine how cultural awareness enhances client relationships and supports ethical inclusive planning.

ACTEC Fellow Reetu Pepoff of Chicago explains how the ABA Model Rules of Professional Conduct provide a framework for navigating cultural considerations and provides real-world examples that highlight the importance of sensitivity and adaptability in estate planning. Welcome, Reetu.

Why Cultural Competence Matters in Estate Planning

Reetu Pepoff:  Thank you, Connie. The reason that we’re talking about this today is because it’s important to recognize how a client’s cultural background and personal values can really influence how they approach estate planning. Different cultures have different traditions, beliefs, and values around family dynamics and around wealth transfer, which need to be considered in order to create an effective and meaningful estate plan. And it’s important that estate planning attorneys practice cultural competence when representing clients so that the estate plan can address not only the financial and tax aspects but also honor the client’s cultural heritage and their personal wishes.

Defining Culture and Competence in Estate Planning

So, to make sure that we’re all starting from the same point, we do need to define certain terms we’re using here like “culture” and “competence.” When we’re talking about culture, we’re talking about the shared customs and traditions and social norms of a particular group of people: it’s the way that our attitude towards family, inheritance, and responsibility shapes our decisions. For example, favoring extended family or prioritizing care for elderly parents. But cultural norms can also affect how we communicate topics with family members. In some cultures, discussing death and financial matters may be considered offensive and discouraged. Other cultures may be more open and transparent to these topics.

ABA Model Rule 1.1 and Competent Representation

Now when we’re talking about competence, we’re talking about having sufficient knowledge, judgment, and skill for a particular task. The ABA Model Rules of Professional Conduct Rule 1.1 states that, “in an attorney-client relationship, a lawyer shall provide competent representation to a client. A competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

So when we think about competency in the cultural context, it generally means that attorneys should understand and respect their client’s diverse backgrounds and values in order to provide effective and personalized legal services. So it involves recognizing and respecting the differences in beliefs, values, customs, and traditions of people from various cultures.

The Four Components of Cultural Competence

Now cultural competence includes four key components.

The first is awareness. Awareness of one’s own personal biases to people who may be different. The first step really involves self-reflection to help us become more conscious of our own stereotypes and our own culture and how that influences our behavior and our attitude towards others.

So it’s being more aware of how cultural differences may have played a role in various interactions and how we felt about that or how we reacted to that.

The second component is attitude. Demonstrating openness, empathy, and respect for cultural differences. It’s valuing diversity and a willingness to learn from others and really seeing diversity as a strength rather than an obstacle or a challenge to overcome.

The third component is knowledge. Actually, learning about different cultures. What are some of their values and traditions? And we can get this by studying different cultures or by attending cultural events or just by having conversations with people from different backgrounds.

And then, finally, the fourth component is skills. Applying what you’ve learned so that you can have effective and meaningful conversations with people from different cultures. It’s practicing empathy and being adaptable to different cultural interaction, picking up on nonverbal cues and responding thoughtfully. It’s not just what you know, but how you use that knowledge.

Applying Cultural Competence in Estate Planning

Putting this all together, cultural competence in estate planning is the intentional practice of understanding and respecting the diverse cultural backgrounds, beliefs, and values of a client when creating the estate plan. And it not only results in a more personalized and meaningful estate plan, but it also strengthens the attorney-client relationship since the client will feel more respected and understood.

Model Rule 1.1 and Cultural Awareness in Practice

Looking at this in the context of the model rules of professional conduct, we know that Model Rule 1.1 requires that an attorney provide competent representation to their client. And that competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. So, competence is more than just technical knowledge of the law. In advising a client about their estate plan, attorneys should recognize how cultural backgrounds shape clients’ views on inheritance and aging and wealth transfer. Some cultures may prioritize family wealth preservation, while others may emphasize individual inheritance rights. In order to competently provide estate planning services in this multicultural society, we have to understand these cultural differences. And by integrating cultural awareness in our day-to-day practice, estate planning attorneys can fulfill their ethical duty under Model 1.1 and provide competent and inclusive representation.

Model Rule 1.4 and Effective Client Communication

Now Rule 1.4 of the Model Rules relates to communication. So Rule 1.4 requires estate planning attorneys to keep their clients informed about estate planning matters, explain legal concepts clearly to enable clients to make informed decisions, and respond promptly to reasonable client requests. Having clear and effective communication is critical in the legal representation because it ensures that the client fully understands their options and the implications of various decisions related to the estate plan.

Language Barriers and Client Understanding

An effective communication goes beyond just translating words when someone speaks another language. It really involves ensuring that the client understands the legal advice you’re providing. When there are language barriers, conversations with clients can be sort of jumbled and unclear, which then can lead to potential misunderstandings. And if clients don’t understand key details or the implications of certain decisions, it can lead to the client making uninformed decisions that negatively impact their estate plan or don’t actually reflect their wishes. For example, they might not fully grasp the risks associated with the particular estate planning strategy or the consequences of a healthcare decision. And these language barriers can also hurt the attorney-client relationship, which is a relationship that is supposed to be built on trust.

Clients need to feel heard and understood, and when clients can’t express themselves freely or their concerns are not adequately addressed, they could lose confidence in the legal representation. So, estate planning attorneys must know how to effectively communicate with clients with diverse backgrounds and adapt their communication style to ensure that the client understands the legal advice, which can oftentimes mean hiring a professional translator for those clients who do not speak fluent English.

Model Rule 1.6 and Client Confidentiality

Now Rule 1.6 of the Model Rules provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Now this rule plays an important role in culturally competent estate planning by ensuring that attorneys respect and protect client privacy, particularly when handling sensitive cultural and family matters. Some families may prefer strict privacy about inheritance decisions while others may include extended family and these discussions. So, attorneys should create a safe space for clients to express their wishes without judgment or fear.

And while Model Rule 1.6 mandates confidentiality, it also allows disclosure in specific situations like to prevent harm or fraud. Attorneys do have to balance cultural sensitivities with these legal obligations. It will be important for estate planning attorneys to educate clients on when disclosure may be required.

Cultural Competence as an Ethical Obligation

So putting all of this together really means that integrating cultural competence into estate planning isn’t just good practice, it’s actually an ethical obligation under the Model Rules of Professional Conduct. Thank you.

Connie Eyster:  Thank you, Reetu for helping us reflect on both the importance of engaging effectively and respectfully with clients and how that effort fulfills our ethical responsibilities under the model rules. It’s such an important topic and I really appreciate your time today.

You may also be interested in

• ACTEC Commentaries of the Model Rules of Professional Conduct
• Additional DEI ACTEC Trust and Estate Talk podcasts
• Professional Responsibility Rules When Dealing With Clients Who Have Diminished Capacity (Dec 2023)
• The New Rules of Professional Conduct for Lawyers (May 2019)