What a Great Line

I am currently reading the novel A Thousand Acres (1991), by Jane Smiley.  This is essentially a modern-day version of Shakespeare’s King Lear involving a father’s disinheritance of a daughter from the family farm (a 1,000 acre farm) and the destructive effects of deeply rooted, and long denied, family issues. This novel also is a powerful depiction of estate planning discord. [There are certain tragic elements in the novel that I fortunately do not see often in estate disputes.]

One line in this novel notably jumped out at me the other evening.  It refers to one of the farmer-neighbors named Harold who, often to the humorous and bemused talk of the other neighbors, marches to the beat of his own drummer, but who also is one of the most successful farmers in the community:

Here is the line referring to Harold:

It’s just that he’s [Harold] cannier and smarter than he lets on, and in the slippage between what he looks like and what he is, there’s a lot of freedom.

This line is powerful.  In contrast to Harold, many people are much too concerned about what others think about them. These people stifle their own freedom.

A tie between the above line and this blog post is that my great joy in lawyering is helping clients respond to the currents of life from a position of strength, power, and independence. Independence particularly in terms of having control over their lives, including preventing legal issues, disputes, litigation, not bowing easily to the expectations or judgment of others, and avoiding the time- and emotionally-draining interference and overreach by others.

In one of my earlier blog posts, captioned “Helping Clients Have Power;  Blog Post 2 of 3” (click here for this earlier post), I referred to two of the saddest characters in literature: Willy Loman in the play Death of a Salesman (Arthur Miller) and George Babbitt in the novel Babbitt (Sinclair Lewis). Each of these characters demonstrates so powerfully the sad, unhappy mistake of maintaining such a persistent, engulfing concern about what others think about them. The complete antithesis of power.

Finally, one ancillary legal point.  Liberty is the environment that (fortunately) allows us to be free;  Actually exercising our freedom in the above context is our own responsibility.

A Belated Fathers’ Day Post to Lawyers Who Are Fathers

My wife and kids are out of town for the summer, which has given me a great deal of time alone with our two dogs to ponder the ideas leading up to this belated Fathers’ Day post. This post is directed primarily to fathers who are lawyers. But, it has universal application for all fathers.

This is a philosophical post. And, I realize it may not be of interest to some readers; if so, simply stop reading here. Another reason for this post is that I am purposely adding it digitally to the perpetual web for my wife and kids, for their access now and later.

Here is the point of this blog. Lawyers are called upon to be the Rock of Gibraltar for handling important matters that affect clients’ lives and well-being. Lawyers are often the last resort with a responsibility that allows the buck to pass to no one else. The responsibility lies fully with the lawyer. Success or failure.

A lawyer when called upon to act or protect the interests of his or her clients cannot take on that important responsibility with an “I can’t”, “yes-man”, doubtful, or weak mindset. The lawyer – in the midst of the uncertainty with any disputed issue — must stand firm and resolute, reacting to the inevitable ebb and flow of the task that includes at times hope, doubt, praise, criticism, wins, losses, elation, disappointment, diversions and fatigue.

Here is my belated Father’s Day point:

My guess is that most lawyers (including me) pass along to their children the notion of being at all times strong, at all times resolute, at all times independent, at all times possessing a strength of mind and presence to handle any situation. All beneficial characteristics that can enable a child to chart life as he or she so chooses for any situation, no matter how difficult.

But, this heavy emphasis on strength and self-reliance also carries with it a strongly unspoken denial of our children’s feelings and emotions. Ask the children or spouse of a lawyer if my above summary is off point. My guess is it accurately fits most lawyers (both mothers and fathers who are lawyers).

On the flip side, which is an epiphany for me during this summer solitude, is what we lawyers fail to give our children.

That is, blinded by wanting our children to possess lawyer-like strength and fortitude, we lawyers do not allow our children to experience more fully their own development and metabolism of how to deal with their vulnerabilities.

We effectively thwart and constrict our children’s emotional bandwidth in response to how they otherwise can (and will) evolve when faced with struggles, disappointment, emotional-pain, periodic feelings of weakness, doubt, etc. Merely expecting our children to act like junior-lawyers in response to life and their circumstances is a kind of parental fundamentalism. Not much different than parents who believe religious fundamentalism gives their children an upper edge.

So, fathers; by all means continue to help your children develop strength and fortitude. These are gifts you are giving them. However, the change I recommend (that applies to me as a father) also is to allow room for your children to experience and develop their own response to the vast array of feelings and emotions that life presents. Against the backdrop of strength and fortitude, do not expect or require a sobriety of emotion for your children.

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.