The 80% Rule to Avoid Letting Others Get Under Your Skin

Bottom line, we all can be happier if we disregard 80% of what anyone else tells us. If you stop and consider carefully the words that typically come your way from others, most of them consist merely of argument, bias, preferences, or ungrounded (often unsolicited) recommendations and conclusions that some other person feels compelled to send your way. Lawyers, in particular, have to listen to a lot of argumentative, biased blather from opposing parties, etc.

Related to the above point, as I was driving to my office today I thought about how far too many individuals (e.g., assume Person A) allow others (Person B) to hook them and get under their skin too easily, with a feeling that Person A, thereafter, has an obligation to respond to or convince Person B as to why Person B is wrong, etc. On the other hand, and under the 80% rule I stated above, my view is that Person A is wasting otherwise valuable time that does not need to be wasted on Person B, or on responding to about 80% of what Person B said. Just simply let about 80% of what you hear go in one ear and out the other.

I frequently remind my girls about the above 80% point. I also periodically suggest that they consider (i) not accepting others’ framing of a perspective for any situation; but, rather for them (my girls) to step back and first take a moment to consider their own framing of the situation; (ii) then, next, listen to what the other person says to determine whether to accept any part of what that other person is saying that might be accurate, instructive or helpful; or, in some cases, simply disregard entirely all of what the other person is saying. In all cases, I suggest one should be civil, kind, and empathic. Just don’t buy into all that someone else says.

And, finally, readers I hope you apply these same recommendations to this blog post. I understand fully that not everyone will, or has to, agree with my comments, or even 80% of my commentary.

My 7.9.20 Steve Leimberg Newsletter: Inter-Vivos QTIP Trusts; Now Even Better in Georgia

I continue to believe the inter-vivos QTIP marital trust is one of the best options for tax / asset protection trust planning. Click here for my July 9, 2020 newsletter. At a minimum, I ask that you at least read the section of my newsletter captioned “Preface – The Notion of Asset Protection Planning“. Please contact me at james@ktlawllc.com if you have any thoughts or questions about this QTIP trust planning.

Note:  You have my permission to print, copy, or forward copies of this newsletter to any other third-parties. 

The Misdirected Framing of a Defense Argument in the Arbery Case

The blog post points ultimately below to my continuing, strong criticism of Gregory McMichael, Travis McMichael, and William Bryan’s inevitable defensive attempts to turn the table on Ahmaud Arbery and make Arbery out as the aggressor, against whom Travis McMichael was the victim who had to defend himself by fatally shooting Arbery three times with a 12-gauge shotgun.

I am not going to repeat details of this McMichael / Bryan killing here that are more than abundantly available in the media and on the web. The point I wish to make is to urge readers not to allow themselves to get pulled into this “Arbery-aggressor” argument. In my opinion, it is a misdirected framing of an argument the defense attorneys hope they can spin as a winning theme for the McMichaels and Bryan.

In short, and based on my review of the recent Arbery probable cause court hearing videos, the McMichaels / Bryan attorneys are (not a surprise) beginning to advance their self-defense argument, as follows: That is, just moments before Arbery’s death, Arbery “squared up” in a fighting stance and attacked Travis McMichael, who was standing by the side of his pickup truck brandishing a 12-gauge shotgun. Travis McMichael felt he was in threat of bodily harm and shot Arbery in self-defense. Travis McMichael’s attorney refers specifically to this defensive argument in his Closing Arguments during the recent probable cause hearing. Click here for a YouTube video of the Closing Arguments (listen, in particular, to the first 60 seconds).

Don’t fall for this misdirected framing of a defense by the McMichaels / Bryan attorneys. This defense is deja vu of the argument that enabled George Zimmerman in 2012 to walk free from his killing of Trayvon Martin.

I strongly criticized the 2012 Zimmerman acquittal because, in my opinion, when Zimmerman moved forward in order to hunt for Martin as part of Zimmerman’s attempt to investigate and find Martin, etc., all bets should have ended at that point for any “self-defense” or “stand-your-ground” argument for Zimmerman. In my view, when Zimmerman took it upon himself to make a move toward Martin to find him, etc., Zimmerman became the aggressor with no basis thereafter for a self-defense or stand-your-ground argument. Below is a simple example in line with my argument that Zimmerman became the aggressor.

Assume my wife and I are walking down the sidewalk at night. Some guy walks past my wife and me and appears purposely to bump into me with such force that I fall down on the ground. The guy keeps walking away from us. But, I reverse my direction, brandish my handgun, and chase down the guy; he “squares up” and moves in my direction aggressively to hit me; I shoot and kill him with my gun.

Now, in this example, one might argue this guy was the aggressor when he bumped into me, or when he “squared up” toward me, etc. However, I am the first aggressor relevant to my use of the gun. I am, therefore, the aggressor with the gun. My killing of the guy, in this example, likely would not have occurred (i) as he was walking away from my wife and me in the opposite direction, and (ii) I intentionally changed my direction and went after the guy while brandishing (and ultimately using) my gun.

I believe the example above with my wife and me is sufficient to convey my point contrary to the McMichaels / Bryan defensive framing of the issue. The McMichaels / Bryan were the first (and only) aggressors with the guns. It is entirely unreasonable to try and cast Arbery as the aggressor for purposes of the underpinning of the defense lawyers’ self-defense argument.

Finally, as a broader notion, assume you have a 25-year old son. Your son has been chased for approximately four minutes by three grown men using two vehicles. Your son becomes essentially trapped by the three men, and is likely so exhausted he can no longer run. One of the men is out of the truck brandishing a shotgun at your son.

As yourself these two questions: (i) what in that moment do you believe your son would have done?, and (ii) what in that moment should your son have done? In answering the second question, and now that we know Arbery is dead, can you realistically — with full conviction not affected by hindsight — state that in that moment your son should have simply put his hands up and surrendered?

As an aside, I certainly believe your son should put up his hands in any situation where the police are the pursuers. But, key to the Arbery case is that the McMichaels and Bryan were not police, were not dressed in law enforcement uniforms, were chasing Arbery in pick-up trucks; and were brandishing weapons; they, likely from Arbery’s perspective, appearing to be taking no survivors in their aggressive, exhaustive, two-vehicle corralling of him. Click here for my previous Arbery post about this vehicle corralling.

My ending point: Your framework for how you view this Arbery case should start at a point well before the defense lawyers’ efforts to have you too narrowly see this case only as a self-defense “squaring up” moment before Arbery’s death.

Ahmaud Arbery’s Death: The Tragic Four-Minute “Citizens Arrest” Chase (revised 5.26.20)

This post centers on Gregory McMichael, Travis McMichael, and William Bryan’s apparent four-minute vehicle chase in Georgia that ended in the tragic death of Ahmaud Arbery; and, in my opinion, that fails to any extent to fall within Georgia’s “citizens arrest” statute. I will soon write a second blog post with more details about the inapplicability of this citizens arrest statute.

My underpinning for today’s blog post is a recent May 16, 2020 video in the web version of the New York Times, captioned “Ahmaud Arbery’s Final Minutes: What Videos and 911 Calls Show”. Click here for a link to this NYT video. This video is a reconstruction of the 12 minutes prior to Arbery’s death, based on the construction site security camera, cell phone information, and 911 call data.

Below are the points I wish to make with this blog post.

One. This NYT video shows, quite shockingly and extremely painfully, how Ahmaud Arbery apparently was chased by one vehicle driven by Gregory and Travis McMichael, and by a second vehicle driven by William Bryan, before being trapped by all three men and ending with Arbery’s tragic death.

More specifically, the McMichaels and Bryan appear — in this NYT video reconstruction for a period of approximately four minutes — to have used their two vehicles to chase and trap Arbery. Arbery — running on foot from the two vehicles — apparently changed his direction twice in unsuccessfully avoiding getting overtaken and trapped. This apparent four-minute vehicle chase is not information I was aware of until seeing this NYT video.

What also jumped out to me powerfully from this video is that the McMichaels and Bryan appear to have twice turned their vehicles around along the roadway in their ongoing four-minute trapping of Arbery. The first of two reversals by the McMichaels is when Gregory McMichael apparently jumped from his truck cab into the bed of his truck and began wielding a .357 handgun as the chase for Arbery continued. In this NYT video William Bryan was apparently the first in this chase to reverse the direction of his vehicle as he continued to pursue Arbery, followed with a similar reversal by the McMichaels.

Two. My second point here is my own subjective perspective. It stems from my having lived in Atlanta my entire life. And, my observation in Georgia of the still-present deep level of racial prejudice, especially by many in the age 60+ range. And, no better than the overt racial views I observed in Georgia as a child during the 1960s is what I perceive at present to be a quiet, unspoken, “wink-wink”, still-deeply-seeded racial prejudice in Georgia. These are individuals who either are too cowardly to be candid and forthright in acknowledging their racial prejudice, or who have no interest in facing squarely a need to stop and challenge themselves about why and whether they are willing to contemplate a more-evolved perspective.

Three. This last point goes to the appearance of recent Facebook posts and web references in which individuals are placing the criticism and blame of this tragic killing on Ahmaud Arbery. To the contrary, I consider blame directed at Arbery to be nothing more than a premature, knee-jerk attempt to support a preconceived, racially-biased conclusion against Arbery.

So, please take a moment to ponder what your innermost race-factor reactions are to this Arbery killing, especially the apparent four-minute chase factor in the above NYT video. Ask yourself if you are jumping immediately to conclusions against Arbery, such as “Arbery had tattoos and looked like someone who is a criminal”; “Arbery had an afro [or dreads, etc.]”; “Why was Arbery running if he didn’t do anything wrong?”; “Arbery should not have walked into that house construction site”; or, “Why did Arbery resist if he was not doing anything wrong?”, etc. Or, is your reaction a passive acceptance simply that “This is what happens when a black man tries to run. Arbery should not have run.”

My forthcoming blog post will show, quite persuasively from my view as a lawyer, zero support for the McMichaels and Bryan being able to rely on the Georgia “citizens arrest” statute as a winning defense for their actions. These three men possibly may have thought they were properly making a citizens arrest, but whatever they thought likely was powerfully, and tragically, motivated by their own preconceived and prejudicial attitudes and beliefs about blacks, especially a black man running.

Revision today 5.26.20 — This NYC Central Park incident just in today illustrates very well the embedded racial bias we as a society collectively need to acknowledge and address, directly and with a receptive spirit. Click here for the update.

Here is the 5.12.20 Trump tax returns U.S. Supreme Court oral argument link

I listened yesterday to the lawyers ‘ recent May 12, 2020 oral argument before the U.S. Supreme Court in the Congressional House’s subpoena attempts to obtain Trump’s tax returns and various other business records. The subpoenas were not served directly on Trump himself. The subpoenas are for tax returns and business records held by certain other third-parties for time periods prior to Trump’s election as president.  This subpoena question is an extremely novel, and complex, separation of powers question.

Click here for the link to the U.S. Supreme Court webpage that includes the audio of the oral argument, as well as a pdf transcript of the argument.

I certainly have some thoughts from my lawyer perspective that touch on both sides of this subpoena issue.  But, more important than my own view, is this opportunity for you to listen to the oral arguments yourself.  Let me just say that the issue is not merely a simple, conclusory “What’s the problem? Just force them to turn over the records”.  In my view, whatever conclusion the Supreme Court makes in response to this case will be constitutionally monumental.  Your grandchildren will, no doubt, seriously study this case in their law school constitutional law classes.

It’s Good to Play Wrong Notes (this is about music)

It is Tuesday evening.  About to leave my office.  I gave some thought to preparing a legal / tax topic for another blog post. But, then decided to veer off purposely to share a couple of YouTube music jazz videos.  My blog post next week can get back more directly to lawyering, etc.

In my spare time, I am trying my best to inch my way along each week to becoming a better jazz guitarist.  The other night I stumbled across the following two YouTube videos that feature one of the top bass guitar players Victor Wooten.  These two videos really need no further comment from me, other than my following non-crucial brief points.

That is, my reaction to music is to enjoy and comprehend what elements make the music better than other music.  I am not talking just about the style of music, e.g., rock, hip-hop, jazz, classical.  But rather, why do we enjoy hearing one performance better than another?  What creates within us this difference in how we respond to the music?

I know the answer conceptually.  It is the rhythm, e.g., the beat, feel, energy, tension, release, and pulse of the music.  It is not (at least for me) merely that someone plays his or her music in a nice, safe, pleasant, ordered manner.

The following two Victor Wooten videos are great examples for how Wooten powerfully demonstrates some key factors that go to how we respond when we hear music (for example, when the player purposely, or accidentally, plays wrong notes).  One of the videos also illustrates how, for example, Wooten on bass can play intentionally in a manner that can make the other soloist actually sound better. Click here for the first Victor Wooten video;  click here for the second video. [NOTE: the first video has a short intro by a younger guitarist who is not Wooten.]

I urge you to take the time to view these two videos, even if Wooten might not be talking about your particular type of music.  His take-away points are, in my view, universal to all music.  I also would greatly enjoy hearing from any of you if either or both these videos strike you as powerfully as I was struck.  I hope you enjoy them.

A Quarantine Pastime: Listen to Georgia Court of Appeals Oral Arguments (on the Internet)

The title to this blog post is probably not stopping many readers quickly in their tracks to see what it is about.  I understand.  The blog title also is likely not edge-of-seat dinner party fodder.

Nonetheless, I generally each week read the current Georgia appeals court opinions so that I can keep up with the broad range of legal issues, changes, developments, etc. Today, among the recent opinions I read, is the March 11, 2020 opinion in Doe v. State. Click here for a copy of the Court of Appeals opinion. Click here for the website link for the related appeals court oral argument for Doe v. State.

Briefly, the above Doe v. State does not fall within my area of law practice;  but, deals with an individual who was acquitted of certain felony criminal charges and who sought to have his record expunged under the procedures of O.C.G.A. Section 35-3-37.  Here, however, is one general take-away point from this particular case. A person’s arrest record (even if not ultimately convicted) remains a public record unless the person can sucessfully get his or her record removed under these procedures.  I chose this Doe v. State for this blog post simply because it is the opinion I last read this morning among the recent opinions from the past week.  It is essentially my random selection for purposes of writing this blog post.

My suggestion, however, especially during our long, home-bound quarantine days, is that readers might find very interesting the Georgia Court of Appeals website with the audio-video recordings of the appeals court oral arguments.  This is where the lawyers stand before the Georgia Court of Appeals judges (typically three judges) and present an oral (verbal) argument to try and convince the appeals judges to see the case their way.  The judges often prod the lawyer’s argument with point-on questions, comments, requests for clarification, etc.

Very briefly as background information, litigation cases can sometimes “go up” on appeal with the appeals court having the power generally to determine whether to affirm the lower court’s decision of the case (typically the trial court); to reverse the lower court; and/or to remand the case back to the trial court. Keep also in mind when a matter goes up on appeal that the lawyers cannot for the appeal add any additional evidence, testimony, documents. There are various levels of state and federal appeals courts (e.g., Georgia Supreme Court; The Federal Court of Appeals for the Eleventh Circuit;  the U.S. Supreme Court, etc.).

The purpose of this blog post is not to elaborate further on the procedure, structure, and design of appeals courts.  But I do point out that any case on appeal is as good as it can get at that point of the appeal, depending on how well the trial court lawyers put on, and preserved, the appropriate evidence and how well they procedurally — during the trial — preserved the disputed legal questions for the appeal (This all gets into the procedural details I purposely do not include in this blog post).

Now, back to using the above Doe v. State as an example. I find virtually all appeals arguments very compelling and instructive for the following three primary reasons:

One. The Georgia Court of Appeals allows only 15-minutes of oral argument for the lawyers who represent each party in the case. This is each lawyer’s opportunity to try and hone down — convincingly — the essence of his or her 15-minute appellate argument in a focused, understandable, concise, and persuasive manner.  Keep in mind the lawyers have already previously filed written summaries of their appeals arguments (called Briefs).

This limited 15-minute oral argument means, from my liking, that the 15-minute argument compels the lawyer to get immediately to the heart of the matter without blustering, grandstanding, sidestepping, and purposeful obfuscation. By contrast, these run-of-the-mouth factors are what we lawyers (and clients) too often hear from opposing lawyers in other contexts (phone calls, discussions, trial court hearings, mediation, etc.).  I greatly enjoy the relief of brevity for these 15-minute appellate arguments.

Two.  The boiled-down directness of the lawyers’ arguments, and most often with to-the-point prodding and questions from the appeals judges, give us listeners an audible pathway directly to the heart of the issues, along with the crux of what the appeals judges are considering from their perspective. In my view, listening to these oral arguments is better than CLE (continuing legal education) in that I get can grasp and consider the essence of the issues in 30-minutes or less.  And, in a real-world context.

Three.  The appeals process (in any appeals case) often highlights the deficiencies in how the lawyers conducted the lower-court trial, particularly the existence of insufficient evidence for consideration on appeal, etc. Every appeals court opinion (and the oral arguments) provides great learning material.

Go back above and click the oral argument link.  Will cost you only 30 minutes of time.

Audio-Visual Remote Notary Allowable Now in Georgia (updated 4.15.20)

This blog post now includes an April 15, 2020 update, that I set forth at the bottom of this original post.  Immediately below is my original post.

Georgia Governor Kemp, on April 9, 2020, signed an Executive Order allowing lawyers (or a Notary under the supervision of the lawyer) to sign documents remotely as a Notary Public, with the following requirements:

(1)  The lawyer as Notary (or his or her supervised Notary) participates as the Notary Public by a real-time audio-visual means (Zoom, etc.) along with the individual(s) whose documents need to be notarized;

(2)  The Notary during the audio-visual meeting reasonably verifies the identity of the individual whose signature is being notarized;

(3)  The Notary actually witnesses the person sign the documents while the Notary and individual are together connected to the audio-visual meeting;

(4)   The Notary must physically be in Georgia while participating in the audio-visual meeting (see my additional comment further below about this participation point);

(5)   The documents have to be physically delivered to the Notary on the same calendar day of the audio-visual signing so that the Notary can add his or her notary stamp and signature to the documents.

The Executive Order allowing this remote Notary set-up expires either when the Georgia Covid-19 State of Emergency ends, or if the set-up is otherwise terminated earlier.

Click here for a copy of this Georgia Executive Order.

My Additional Observations about this Executive Order

This Executive Order applies only to lawyers who are Notaries, or non-lawyer Notaries supervised by the lawyer.  A non-lawyer Notary — but only if supervised by a lawyer during the audio-video meeting –can notarize documents under this remote order.

The remote set-up must include both audio and video.   My reading of the Executive Order is that it does not apply merely to audio calls.

The Executive Order allows this remote audio-visual set-up for any act that can be performed by a Notary under the Georgia notary statutes, including a Notary attestation to a sworn statement;  but, of course, for documents requiring a sworn oath, the Notary must take the individual’s oath over, and during, the audio-visual meeting.

The Notary must physically be in Georgia while participating in the audio-visual meeting. The Notary (whether lawyer or supervised Notary) must be a current, active Notary Public.

The lawyer (if not a Notary) along with his or her supervised Notary must each participate (but can be in different physical locations if necessary) in the audio-visual meeting so that the attorney can supervise the non-lawyer Notary as needed for the audio-visual documents, meeting, etc.

Finally, in my opinion, the following is an important soft spot in this Executive Order that warrants your attention.

Where Can the Individuals Signing the Document be Located?

The Executive Order does not address whether the individuals (other than the Notary) signing the documents must be present in Georgia during the audio-visual meeting.

IMPORTANT NOTE: The April 15 update below only partially touches on my concern about the location of the individuals signing the documents. The update appears to suggest the individuals and non-notary witnesses signing the documents “should”  be present in Georgia during the audio-video call. The update reiterates the point that the Notary “must” be in Georgia during the audio-video call.  I suggest readers continue to think about the concern I state below in situations where the individuals signing the documents are not in Georgia during the audio-video call.

This location-of-the-individuals remains, in my opinion, a gray area of the Executive Order. Assume, for example, the individuals signing the documents during the audio-video meeting are in New York;  the Notary is a Georgia Notary physically in Georgia during the meeting.

In short, I am not comfortable recommending — in every instance — this Georgia Notary remote set-up when the individuals signing the document are not physically in Georgia during the audio-visual meeting.  If the individuals are not physically in Georgia, there may later arise questions about whether the state law other than Georgia will recognize the Georgia remote notarization (e.g., if the document is a a sworn, notarized document, or governed by the law of a state other than Georgia). Arguably, other non-Georgia states should recognize the Georgia remote Notary order under the doctrine of comity, etc.  But, I simply do not believe the answer is unequivocally clear so as to apply this Georgia remote notarization procedure in every situation.

Update Below 4.15.20 — Now Answers the Above Soft Spot

My above original version of this post is dated April 13, 2020. Today, April 15, 2020, the State Bar of Georgia issued additional clarifying details about this remote notary situation. The additional detail is very helpful and well-presented.

Click here for a link to the Georgia Bar additional material.

I do not summarize all of the additional material. But, below are five key points from this additional material that supplement my above post :

(1)   The individuals signing the documents must be present in Georgia during the audio-video meeting (along with the Notary having to be present in Georgia for that meeting);

(2)   The Notary who participates in the audio-video meeting does not have to be an employee or agent of the lawyer;  but, in all cases with these audio-video meetings the lawyer must be present on the audio-video meeting so as to oversee and supervise the Notary;

(3)   The Georgia State Bar recommends that any documents signed under this audio-video remote set-up include the following caption at the top of the document:

Notarized Pursuant to Executive Order 04.09.20.01

(4)  And, that the Notary’s signature block include: “This [name of document] was notarized pursuant to Executive Order 04.09.20.01 using [insert technology name; Zoom, etc.] as real-time audio visual communication technology.”

(5)  The additional material includes also an embedded link for suggestions from the Georgia Fiduciary Law Section about executing estate planning documents under the Executive Order.   I highly recommend estate and trust lawyers read this additional information, which also includes well-stated, thorough  recommendations.

Essential (Preventive) Estate Planning Checklist Provisions

My sample estate planning document provisions below are essential in many cases for helping prevent issues that I see in my trust and estate litigation work.

My experience indicates these provisions are not used frequently enough among estate planning attorneys.  Also, readers of this blog cannot, and should not, rely on these sample provisions nor read this post as my recommendation for using any one or more of the provisions in a particular estate planning document or situation.  But, the provisions should be on your estate planning checklist.

The following are, therefore in my view, important sample provisions for a trust document (the last two deal only with a married couple situation):

Fiduciary Duty.  In exercising any power with respect to a trust created under this trust agreement, each Trustee, Co-Trustee, and directed trustee (Article XIII) shall at all times serve in a fiduciary capacity and act in accordance with fiduciary principles, including, but not limited to, the duty of care, loyalty, and confidentiality.

Allowable Self-Dealing.  The decisions by my spouse Jane while serving as a Trustee or Co-Trustee under this trust agreement that may or could be otherwise construed as self-dealing with respect to Jane’s exercise or non-exercise of any power hereunder, or the time or manner of the exercise thereof, made as a prudent person in good faith, shall fully protect Jane and shall be conclusive and binding upon all persons interested in the trust estate; provided, however, that no self-dealing as to any charitable or non-profit interest under this section 1.7 is allowable to the extent prohibited by any applicable tax or non-tax laws or related regulations.

Divorce[But, see my Important Note below.]  Although Jane and I do not contemplate a divorce, we each acknowledge and are aware that in the event either one of us (i) files a complaint or petition for divorce in any jurisdiction or (ii) obtains a decree or judgment of divorce in any jurisdiction, Jane shall, as of the occurrence of the earlier of either of these conditions (i) or (ii), at such time be deemed for all purposes (including any position as a fiduciary and as to any trust created by exercise of a power of appointment or distribution-in-further trust) to have predeceased me as of my date of execution of this trust agreement.

Contemplation of Remarriage. Although neither Jane nor I contemplate the occurrence of a divorce from one another or a remarriage to another spouse, if for any reason following my execution of this trust agreement, I were to enter into marriage with anyone else other than Jane, my express and clear intention is that that new spouse  shall not receive any property from my estate nor under the provisions of this trust agreement, with the result that all provisions in my Last Will and Testament and this trust agreement (whether or not either document is amended after my execution of this trust agreement) shall remain fully in effect and unchanged by reason of my marriage to that other spouse.

Important Note re the Above Divorce Provision

The estate planning lawyer who represents both spouses needs to memorialize and make clear to both spouses that each spouse understands the divorce provision can result in potentially adverse consequences to either or both spouses in the event of a future divorce. The estate planning lawyer, in my opinion, also should inform both spouses together that they have the option of seeking separate counsel to review this divorce provision before the estate planning lawyer includes it in the spouses’ documents.

And, I also believe the estate planning lawyer under the ethics rules cannot include the divorce provision only in one spouse’s document if that lawyer represents both spouses, even if the spouses consent; unless both spouses seek separate counsel.  Otherwise, including the provision only in one spouse’s document — by the estate planning lawyer who represents both spouses — is substantively akin to preparing a prenuptial agreement only for one of the two spouses while representing both spouses.