A Closer Look at Competence, Fees, and Trust Decanting
Estate planning is an area of law where clients place an extraordinary amount of trust in their attorney. Decisions made in this context often affect family relationships, fiduciary duties, tax exposure, and long-term financial security. Because of this, Illinois lawyers practicing estate planning are held to strict ethical standards under the Illinois Rules of Professional Conduct, particularly when handling complex matters such as trust decanting.
This article examines ethical concerns that may arise when an Illinois estate planning attorney accepts a highly specialized matter without prior experience, delegates the work to others, and charges substantial fees without full transparency. The discussion uses a scenario that has been raised in connection with Madison R. Miller, an estate planning attorney, practicing in the North Shore area of Illinois, Madison also has listings on legal directories such as FindLaw and Super Lawyers that describe her education, practice areas, and contact information and analyzes how such conduct would be evaluated under Illinois ethics rules. This is an analysis of professional obligations under Illinois law.
Madison R. Miller accepted representation of a client in connection with a trust decanting matter despite lacking experience and competence in that area of law. Rather than declining the engagement or referring the client to a qualified attorney, she delegated the work to another individual (her associate) who was inexperienced in decanting trusts. Notwithstanding this lack of expertise, she billed the client an excessive amount for the representation. Ms. Miller was aware of her own lack of competence and nevertheless continued the representation instead of advising the client accordingly or seeking an appropriate referral. This conduct as alleged is unethical, as an attorney has a duty to decline or withdraw from a matter when the lawyer lacks the necessary competence and to fully inform the client of such limitations.
Trust decanting is not a routine estate planning task. In Illinois, it is governed by the Illinois Trust Code and involves transferring assets from one trust into a new trust, often with modified terms. These changes can alter beneficiary rights, affect fiduciary liability, and create significant tax consequences. Because of these risks, trust decanting is widely recognized as a highly technical area requiring specialized legal knowledge and careful analysis.
Under Illinois Rule of Professional Conduct 1.1, attorneys are required to provide competent representation. Competence is defined as having the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. An attorney is not prohibited from taking on a new or unfamiliar type of matter, but if she lacks experience, she has an ethical obligation to either gain the necessary competence through study before acting, associate with experienced counsel, or refer the client to another attorney who is already qualified. What the rules do not permit is silently proceeding with a complex representation while knowing that one lacks the necessary experience and then billing the client for that learning curve.
In the scenario above involving Madison R. Miller, the ethical concern centers on the allegation that she accepted a trust decanting engagement despite having no prior experience handling such matters. If an attorney knows at the outset that she is not competent in a specialized area and does not disclose that fact to the client, this raises serious questions under Rule 1.1. The rule exists to protect clients from precisely this situation: paying for services that are not competently rendered.
Closely related to competence is the duty of communication under Rule 1.4. Illinois attorneys are required to keep clients reasonably informed and to explain matters to the extent necessary for the client to make informed decisions about the representation. Informed consent is not meaningful if a client is unaware that their attorney lacks experience in the matter or plans to delegate substantial portions of the work to someone else. Transparency is especially critical in estate planning, where clients may not understand the technical complexity of the work being performed.
Another ethical issue raised by the scenario involves delegation. While attorneys may delegate work to other lawyers or non-lawyers, they remain fully responsible for that work under Rules 5.1 through 5.3. Delegation does not relieve the primary attorney of accountability, nor does it eliminate the obligation to supervise or to inform the client when delegation is material to the representation. If substantial trust decanting work is performed by another individual (who has limited experience) without the client’s knowledge or consent, ethical concerns arise regardless of who ultimately completed the task.
Fees are another central issue. Rule 1.5 of the Illinois Rules of Professional Conduct prohibits attorneys from charging unreasonable or excessive fees. The reasonableness of a fee depends on multiple factors, including the difficulty of the matter, the attorney’s experience, and customary fees for similar services. Charging a premium fee for highly specialized work while lacking experience in that area, or billing excessive hours due to inefficiency or inexperience, may raise ethical concerns. Clients should not bear the financial burden of an attorney’s decision to take on work beyond her competence.
Illinois ethics principles also recognize that referral is sometimes the most ethical course of action. When a lawyer knows that a matter exceeds her skill set and that competent representation cannot be provided without undue risk to the client, the ethical response is disclosure and referral, not retention. The duty of loyalty to the client must outweigh the financial incentive to keep the matter.
It is important to emphasize that only the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois has the authority to investigate complaints and determine whether an attorney has violated ethical rules. Allegations alone are not findings, and ethical violations must be established through formal processes.
That said, the Illinois Rules of Professional Conduct exist to protect clients and maintain public confidence in the legal profession. Situations involving alleged lack of competence, inadequate disclosure, questionable delegation, and excessive billing undermine that confidence and warrant careful scrutiny. Estate planning clients deserve honesty about their attorney’s experience, transparency about who is doing the work, and fees that reflect competent, ethical representation.
In a profession built on trust, ethical boundaries are not optional. They are the foundation of responsible legal practice.
Conclusion
Ethical rules are not technicalities; they are safeguards designed to protect clients at moments when legal decisions carry lasting consequences. In Illinois estate planning, particularly in complex areas such as trust decanting, those safeguards demand competence, candor, and restraint. When questions arise about whether an attorney accepted work beyond her experience, delegated it without meaningful disclosure, or charged fees disproportionate to the services competently rendered, the issue is not merely one of professional judgment but of ethical responsibility.
The scenario discussed in connection with Madison R. Miller highlights why the Illinois Rules of Professional Conduct place such emphasis on transparency, informed consent, and reasonable fees. Clients are entitled to know who is handling their legal matters, how experienced that person is, and whether the fees charged reflect fair value rather than experimentation or inefficiency. When those expectations are not clearly met, confidence in the attorney–client relationship erodes.
Ultimately, the responsibility for determining whether ethical violations have occurred rests with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois. However, public discussion of ethical standards serves an important purpose. It reinforces that the practice of law is not simply a business, but a profession grounded in trust, accountability, and a duty to place the client’s interests above all else.
