To Your Lawyer: “Would You Buy Your Own Legal Services?”

The theme of this post is for the legal services consumer simply to ask his or her lawyer the following question: “Would you buy your own legal services from your law firm, and why?”  And, I am not suggesting there cannot be a suitable, good reply to this question. I am saying the question helps consumers consider relevant factors in assessing legal services, including my recommendations below.

Among my persistent attempts to try and compel clients to consider preventive legal and tax planning to avoid down-the-road costly disputes and legal fees, I harp on the point that a legal services consumer faces the following economic conundrum when obtaining legal services, whether preventive or litigation, etc.:

  • There is realistically no way the consumer can gauge the quality of the legal services he or she receives; and

  • Without being able to assess the quality, the consumer has no idea of what the market cost is (or should be) for the legal services.

Considering the above two factors, and because law firms typically measure lawyer performance primarily on a lawyer’s billable hours, the consumer absolutely must keep a close eye on the efficiency of how his or her lawyer provides legal services.

Among the factors you, as a client, can consider are:

(1) Does your lawyer care about your situation or case? This might sound trite, but I believe most clients are able to perceive this important factor.  In other words, you do not want to be merely a cog in the wheel of your lawyer’s busy workload.

(2) Does your lawyer push down most of the work to lower level members of the law firm? This arises when your invoice shows 3 or 4 (or more) different billing lawyers, and in most cases newer lawyers, who are charging time to your file. Essentially, you are helping pay to train these other lawyers.

There is no doubt that some work can be handled well by newer lawyers in the firm; but keep an eye on whether these other lawyers are predominantly on the steep side of the learning curve. Require a balance by limiting this push-down approach. Let someone else pay the bulk of their training. Don’t just leave this factor open-ended.

Accordingly, and especially during the what-if, strategic, and developmental stage of your legal work, ask your lawyer to handle the bulk of your work himself or herself, without merely passing it down to a multitude of lesser-experienced lawyers. The judgment and experience of a more seasoned lawyer provide the greater value for legal services, compared merely to the lower hourly-rates of newer lawyers.

(3) Does your lawyer bring other lawyers to his or her meetings and telephone conferences, essentially as the note takers? How many meetings have you attended where the note-taking lawyers essentially say or contribute nothing during the meeting? Discuss this set-up with your lawyer and ask if (and why) this is necessary for your situation.

(4) Does your lawyer use email and other modern digital technology to enhance his or her efficiency? This may possibly reflect where your lawyer falls on the scale of creative openness to change and progressive ideas. [Some lawyers still refuse to use email and have their assistants print hard copies of their emails.]

(5) Do you get trailing U.S. mail hard copies of letters and memos from your lawyer 2 or 3 days after the matter has already been addressed or completed with earlier emails, phone calls, etc.? Tell your lawyer you do not need these hard-copy mailings to the extent of the related additional time charge and expense.

(6) Ask your lawyer, as part of his or her work, to provide you with short, bulleted, talking-point emails, letters, and memos. This suggestion goes to how much of your invoice reflects the time-consuming, law-review mentality among most lawyers (including me).

That is, by our nature and competitive law school training, we lawyers prefer that every single communication we provide to clients (and to anyone) be law-review perfect.  An A+ grade product.  This A+ approach is, no doubt, a necessary and essential goal for final court papers, briefs, legal documents, contracts, trusts, etc. And, a lawyer’s mindset and thought-process at all times must be at an A+ quality level.

But, for every email, memo, or draft document, if your lawyer clocks you for final, law-review perfection you will end up with a much larger legal bill than necessary.  Tell your lawyer on the front end: “For letters, emails, memos, etc., give me only a rough outline of ideas first and we can discuss them as we progress along, etc.” Then, as necessary, your lawyer can polish to law-review perfection the final communications or other documents. This recommendation goes directly to the time-efficiency and cost-effectiveness of your legal services.

(7) Finally, my late father was a lawyer. I am a lawyer. The point here is that most lawyers handle the bulk of their own legal needs.  Few lawyers (including me) face — as a consumer — the burden of paying a legal invoice. Lawyers can, however, be empathic and place themselves in the clients’ shoes so as to help better address how a client more effectively can obtain legal services.

Just Say “No” to Financial Institution Intrusion into the Financial Power of Attorney Arena

I increasingly get calls from clients who are concerned when they run into the following situation.

The financial institution where the client maintains an account tells her she must use only that financial institution’s power of attorney form, rather than her own power of attorney.

Furthermore, if the client stands firm on using her own power of attorney, some financial institutions will thereafter attempt to mandate that she (or the agent named in her power of attorney) sign an additional institutional form that operates as an overlay for the client’s own power of attorney.  This overlay form is captioned along the line of “ABC Bank Attorney-in-Fact Agreement and Affidavit for Non-ABC Bank Power of Attorney.” This form gives the misdirected impression the client can now freely use her own power of attorney, without the institutional power of attorney form.

The above ostensible “must” also sometimes includes the institution telling the client that its legal department will have to review the client’s own power of attorney. This often is where I get the phone call from my client.  And the word “must” generally never sits well with me in many situations.

So, just say “no” to the above institutional power of attorney forms. “No” to all of the forms. Stand strong with a persistent “no” and inform the institution you will use your own power of attorney, without signing any additional institutional forms dealing with the power of attorney.

So, why do I strongly recommend against these institutional forms (including the above overlay “agreement and affidavit for non-ABC Bank power of attorney”)? Because these forms in most cases include features that are targeted to benefit the financial institution, not you.

Among the key institutional form features are:

  1. The agent must agree to indemnify the financial institution against a broad range of items;

  2. The institution’s form mandates what specific state law controls, which might be a state other than the principal’s home state.  Or, a state other than where the agent lives, etc.;

  3. The form requires an agreement to arbitration for issues that arise with the power of attorney.

Also, back to the above legal department mandate. Don’t be alarmed if the financial institution runs your power of attorney by their legal department. Just give them a pdf or photocopy for that purpose. I have had these run-thru-the-legal department situations occur numerous times with no negative consequences. And, with my clients not thereafter signing any of the institution’s forms.

And, quite frankly, if I am an agent acting for my principal under a power of attorney and my principal, if incapacitated, cannot weigh in on these institutional form requests, I (as the agent) likely do not have authority to agree to the institution’s mandate without some preexisting agreement or discussion with my principal. This is likely a reason financial institutions are now pushing these power of attorney forms on their customers as early as possible.

In order to help give you the strength to say “no”, I recommend you make sure you have an updated, comprehensive power of attorney in place that you can point to when you push-back against these financial institutions.

Also, as an important aside, in Georgia the statutory provisions for having a power of attorney under O.C.G.A. Section 10-6-140 state expressly that the Georgia statutory form power of attorney is not the exclusive method of creating the agency.

Therefore, Georgia law acknowledges use of either a Georgia statutory form power of attorney or your own format of a power of attorney. I have not seen the above financial institution mandate tested fully against the backdrop of Georgia law, but my view is an institution will be hard-pressed to succeed with its own-forms mandate against the existence of these Georgia statutes.

Finally, the New York Times had a good piece last year (May 6, 2016) about this same power of attorney push-back from financial institutions. Click here for the link.

The late Robert Persig (4-24-17): Zen and the Art of Motorcycle Maintenance

Robert Persig, who wrote Zen and the Art of Motorcycle Maintenance, died yesterday (April 24, 2017). This book has had a continuing effect on me since my first reading during college. If I were asked to state in the briefest possible way why this book is so influential, my inarticulate attempt might be to say Persig compels us to examine, and more-fully contemplate, our lives rather than merely being swept along in a kind of half-asleep, herd-like, obsequious manner. And, that we possess an innate ability to sustain this level of self-reliance.

Immediately below, I am reposting my earlier 2013 blog post about Robert Persig and Zen and the Art of Motorcycle Maintenance as a gesture of my continuing appreciation for him and his book.

My earlier 2013 blog post:

This is not a legal or tax post, in the event you wish to stop reading at this point. Rather, it includes a couple of key thoughts in response to my recent second reading of the book Zen and the Art of Motorcycle Maintenance by Robert Persig. I first read this book during college.

For reasons I do not address more fully here due to my desire to keep this post short(er), this is one of those powerful books that affects readers permanently.

Among the many threads of thought in this book, two are the subject of this blog post: Quality. And Death.

As a trust tax lawyer, I deal constantly with both quality and death. Quality in terms of seeking to find the differences that make a difference for a successful, efficient, effective outcome for clients.

Death in terms of a great deal of planning for clients in anticipation of death and in handling numerous after-death issues and problems, both tax and non-tax. I have had a number of very likable clients die over the years. With strong nostalgia, I feel sometimes as though I am an undertaker.

As to quality, one of the aspects I enjoy most about lawyering is that many problems crossing my desk do not trigger immediate, easy, solutions or answers.

Rather, in most cases the idea, kernel, or thread of a solution or answer ends up surfacing in due course, unscheduled during day or night. It is the subconscious working of the mind that most often is the courier delivering these ideas to the forefront of consciousness.

Persig, in Zen and the Art of Motorcycle Maintenance, discusses in a very convincing way the subject of “Quality” and “stuckness”, including his reference to this subconscious aspect of the mind, as follows:

  • “But now consider the fact that no matter how hard you try to hang on to it, this stuckness is bound to disappear. Your mind will naturally and freely move toward a solution. Unless you are a real master at staying stuck you can’t prevent this. The fear of stuckness is needless because the longer you stay stuck the more you see the Quality-reality that gets you unstuck every time. What’s really getting you stuck is the running from the stuckness through the cars of your train of knowledge looking for a solution that is out in front of the train.  .    .    .
  • It’s this understanding of Quality as revealed by stuckness which so often makes self-taught mechanics so superior to institute-trained men who have learned how to handle everything except a new situation.”

Back to my own comments. What I like about Persig’s notion of stuckness is that our accepting and relaxing into these stuck moments results in the most effective and successful way to get unstuck. This is in contrast to fuming, fretting, and remaining doggedly impatient or upset that you do not yet possess an immediate solution or answer.

Back to my reference to death. Persig’s son Chris, who at age 11 rode with Persig on the motorcycle trip described in the book, was stabbed to death 10 years later in San Francisco during a street mugging.

In the book’s “Afterward” that he added in 1984, Persig describes his persistent stuckness about his son Chris’s tragic death. This stuckness appeared to have no possibility of resolution:

  • “I [Persig] tend to become taken with philosophical questions, going over them and over them and over them again in loops that go round and round and round until they either produce an answer or become so repetitively locked in they become psychiatrically dangerous, and now the question became obsessive: ‘Where did he go?’ “

In an extraordinary, moving, and comforting passage within this Afterward, Persig gives a response to the “Where did he go” question. Persig’s response similarly is what I hope can ultimately be in line with my own reaction if one of my family members were to die.

Also, for me to include here the content and substance of Persig’s response to this question would fill up a much longer portion of this blog post. You can read the Afterward for yourself and draw your own conclusion about Persig’s response [Google: Afterward Zen]. And my own praise for Persig’s response to this death question is not to suggest other readers agree or disagree with the response.

Rather, in my view, and because universally we each ponder death from time to time, I personally believe Persig’s commentary – at least for me — is one of the more satisfying responses to this hard, difficult question.

Preventive Planning and Jazz Guitar

Bear with me. There is a connection in this blog post between my reference to preventive planning and jazz guitar. I use the term “preventive planning” in reference generally to estate and asset-protection planning.

The top 1-percent. A roster of high net-worth clients is a badge of honor among estate and asset-protection planning lawyers. A plume signifying success, financial reward, larger law firm profits, etc. The work is high-end, interesting, technically challenging, and typically underpins the ever-increasing hourly lawyer rates for this market segment. I am fortunate to have a small share of these top 1-percent clients. But, I also have many clients in my own group.  That is, the other 99-percent of us.

A focus narrowly only on the top 1-percent fails to address how important it is for our remaining 99% group to address preventive planning. Most current marketing efforts (and the bulk of related articles, commentaries) for estate planning and asset-protection continue to address options for the top 1-percent group. I find few discussions of what we (and our families) — in the bottom 99-percent — ideally need for excellent, cost-effective preventive planning.

The probable absence of estate tax liability for most of us in this 99-percent group also helps push this preventive planning to an even lower place on our “to-do” list. No pressure. No rush. Do it later.

This next point is for our 99-percent group.

One of my high-priority, personal goals is to prevent me and my family from wasting valuable time due to problems caused by lack of planning, outdated, flawed or missing documents, failure of estate planning, absence of asset-protection, etc. Coupled with this threat of lost time, I prefer my family not expend their financial resources on lawyer fees to clean up an oversight or mess I might leave for my wife and kids.

Now, why jazz guitar? I have played guitar since college and presently take improvisational jazz guitar lessons. I am committed to squeezing in 45 minutes of evening practice each day, as though it also is a job. I guard this 45-minute time-slot zealously.

I would be extremely perturbed if issues were to arise from a lack of planning, etc., that steal away my (and my family’s) valuable time. But, I have my preventive planning in place. And it gives me great comfort knowing my family and I will not lose time in dealing with problems, etc. We also will likely not incur substantial lawyer fees to fend off and resolve future problems.

But, bottom line for this post, I am far more concerned about wasted time than money (for fees, etc.). One can always make more money. But, can never get back lost time.

 

This Just Hit Me. Re Estate Planning

I grapple with how much information a client needs to read and consider when putting into place core estate planning.  The complex tax and non-tax laws — and how these laws affect a family and estate planning — have made this entire area almost unbearable for busy clients.  Most simply cannot easily take the time to deal with this right now.

I don’t want to overwhelm a client, but do strive constantly to have my clients end up with a good grasp of the fundamental design of their planning, and their key options.

This points to there being  no simple, easy approach to good estate planning. Choices and options are a necessary evil.  And, require time and thought.

Here is what hit me.  For clients who never take the time to deal with their estate planning, the choices and options do not simply disappear.  Instead, often the continuing need to address these items becomes centered under court-oversight, including potentially contentious litigation.

With the clients failing to deal with these choices and options, you now have opposing family members (fueled by in-laws) fighting to elbow in their own personal choice and options.  The court becomes essentially the forum.   A costly forum.

The potentially expensive court-option is why, as I stated in my last post, lawyers will still benefit financially at the expense of the client’s family in the absence of planning.

Do your family a favor, seriously.   Don’t make your family help line lawyers’ pockets.

50/50 Jury Risk. Preventing Litigation is Crucial.

I just finished a complex fraudulent-transfer litigation case that focused a great deal of contentious light on some earlier estate tax planning. The tax planning involved an estate-freeze/ sale of an LLC interest to an (income-tax  defective) Nevada trust.  I purposely make no comment here about this particular case, other than it prompts me again to remind readers of the crucial importance of preventive planning to help avoid litigation.

The competitive challenge of litigation and controversy work fuels my enjoyment of lawyering. But, for all my clients I harp constantly on preventive planning to avoid getting into litigation.  Litigation is nothing short of time-consuming war, with the odds of winning sometimes a crap shoot if the matter goes to a jury.

Individuals, who scoff at this preventive advice, with comments such as “I don’t care, let them sue me. They don’t have a case”.  Or, “We will just file a lawsuit and see what happens”, likely set themselves up for costly failure.

A wonderful late friend of mine, who was a federal district court magistrate judge, told me many years ago:  “During the 27 years I was on the bench, I never saw a case someone couldn’t lose.”

Below is my general observation about juries for this blog post.

At the end of a trial, the jury deliberates and makes conclusions about what the jury believes are the accurate, credible facts the jurors observed during the trial.  Also at the end of the trial the judge reads the applicable law to the jury, on the notion the jury during its deliberation will apply the jury’s perception of the facts to the law.  This is often called “the law of the case”.

The jury then renders its verdict essentially by the jury deciding during the jury closed-door deliberations how it will combine the facts with the law of the case.

The judge’s reading of the law to the jurors is referred to as “jury instructions”.  Prior to the judge reading these instructions to the jury, the opposing lawyers try and convince the judge to use each lawyer’s own respective written blurb or summary for each point of the relevant law.  This is called a “jury charge conference” or “jury instruction conference”.   The conference takes place among the judge and opposing lawyers without the jury being present.

Now, here is an important jury point to ponder in the context of this blog post.

If you believe you have the weaker merits in a case (for example, less than 50%), you generally will try and keep your litigation case alive with a persistent move toward getting your case in front of the jury.

This weaker-merit posture involves you primarily crafting your lawsuit allegations and discovery, etc., in a way where the issues cannot be concluded with a pre-trial motion for summary judgment or motion to dismiss, etc.

Pre-trial motions are used extensively by litigation parties to try and convince the judge there are no materially disputed facts that warrant having the case continue on to a jury.  Essentially, the pre-trial effort is an attempt to end the case before the jury factor arises.

This pre-trial motion approach, in general terms, means the judge may possibly decide and conclude the case without the case having to go before a jury.  This also means, if the circumstances support a pre-trial conclusion, the judge addresses (not the jury) what and how the facts apply to the law.

Again, the weaker party tries to stall and derail this pre-trial effort.

On the other hand, if you believe you have the stronger merits in a case (more than 50%), you generally will try your best to get the case concluded with the pre-trial approach without the case going to a jury.   By using the above pre-trial motions, such as motions for summary judgment, motions to dismiss, etc., or a combination of pre-trial motions.

Now, why do I refer to 50/50 juries?

My view is that most jury trials even the parties’ odds to 50/50.   A jury, for example, may simply not like one of the parties.  Or, the law that applies to the case (the jury instructions) might involve such a complex array of laws that the jury simply makes ad hoc conclusions in reaching their verdict without the ability to apply the law accurately.

So, if you believe you have 90% of the merits in a case, your odds before a jury drop from 90% to 50%.  If you believe you have a 20% case, your odds essentially increase to 50%.

Preventive planning.  Crucial.

This Book Passage Stopped Me in My Tracks.

The post continues my repeated theme:  That is, we all need to prioritize and value our finite time as an opportunity to enjoy life.  We ideally should expend as little time as possible on time-consuming (and financially costly) disputes, problems, difficulties.  Or, essentially we should prevent death by a thousand paper cuts.

My passion in lawyering is helping clients smooth the sharp edges and corners of life (with preventive planning, and if necessary, aggressive, strategic challenges to resolve disputes, litigation, etc.).  All this lawyering directed at giving my clients simply more time to enjoy life.

As an aside, the following excerpt from the novel Middlemarch, by George Eliot, stopped me in my tracks as one of the most succinct and powerful observations I have read in quite some time on this notion of our finite time and enjoyment of life:

 “…it is in these acts called trivialities that the seeds of joy are forever wasted until men and women look round with haggard faces at the devastation their own waste has made and say the earth bears no harvest of sweetness—calling their denial knowledge.”

from Middlemarch, George Eliot

Click here for my earlier post on how strongly I am impressed with Middlemarch.