I received some interesting comments on my last post from Jennifer Deland, a Massachusetts estate planning attorney. To paraphrase, she expressed that the typical estate planning client is really not interested in the technical language stated in the law. Instead, it is of utmost importance to determine what the client thinks the documents say and do, to correct them if necessary, and finally draft the documents to make sure that what the client expects will actually happen.
This is a point well taken. Not only is it an attorney’s job to keep up with the law and its consequences, but it is also to openly communicate with the client in understandable language. An estate plan belongs to the client and not the attorney, so it should fully reflect what the client wants.
However, the attorney must also guide the client through the process. The attorney adds little to no value if he or she merely fills out some form or provides no insight. Rule 1.4 of the Model Rules of Professional Conduct requires attorneys to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” (emphasis added — you’ll soon see why).
Reasonableness: Too Much Information or Not Enough?
But how much attorney guidance is reasonable, necessary and appropriate?
In estate planning, a well-drafted will or trust is the result of literally dozens and dozens of decisions – some of essential importance, but also some pretty mundane ones as well. So at some level, an attorney must decide how much or how little he or she will explain details of the plan to the client while still working in the client’s best interest.
So can there a point where the attorney’s efforts to educate and help the client’s understanding become unreasonable? Wise minds disagree on this point.
Since we just covered “per stirpes” and “per capita” in our previous post, let’s utilize these concepts in an example while they are still fresh.
Say that a couple wants to leave their entire estate to their three children. At this point, the attorney must ask the uncomfortable question of what the couple would want if one, two or all three of their children do not survive them both.
After the initial shock from visualizing this concept, the couple quickly answers that any grandchildren should inherit their children’s shares, as opposed to any siblings, parents, etc.
Great! But now, the attorney must ask what kind of distribution they would want for the grandchildren. At this point, there is little doubt that the attorney should take a couple of minutes to describe the differences between “per stirpes” and “per capita” distributions and then listen closely to the client’s answer. But is there any duty beyond this?
- Should the attorney present more options through a discussion of “modified per stirpes” and the differences between “per capita by representation” and “per capita at each generation”, thereby increasing the couples’ choice to one of four options instead of two?
- Should the attorney discuss the development of the Uniform Probate Code through the years on this issue, and the differences of opinions between practitioners, the states, and the Uniform Law Commission (formerly the “National Conference of Commissioners on Uniform State Laws”)?
- Can the attorney bill the client for the time he or she takes to explain the options?
- Does the attorney act ethically if he or she doesn’t present all the options?
- Can the attorney take into account that the clients’ eyes may glaze over with a thorough explanation? Will this effort result in fatigue and rushed decisions later in the meeting?
- Could this lead the clients to indecisiveness, and thereby cause sometimes great delay until the next meeting?
- What if through the years, just about every one of the attorney’s clients have picked “per stirpes”. Can the attorney make the decision solely based on his or her own experience and not even present the issue to the client?
Remember that this choice between a “per stirpes” or a “per capita” distribution is just one of dozens of decisions that need to be made for your estate plan.
The Proper Balance?
There are no clearly right answers to these questions. Too little guidance from the attorney is not helpful to the client and quite possibly violates the Rules of Professional Conduct. Too much guidance can take “ownership” of the plan away from the client, and can also be too expensive and time consuming for both the attorney and the client.
But as Ms. Deland says, it is obvious that the client’s level of understanding is clearly of primary importance. Maybe you are interested in the technicalities in the law, and maybe you aren’t. Whichever describes you, make sure that you choose an attorney who feels similarly to you regarding reasonable levels of communication, education and understanding.
- Most Commonly Violated Rules of Professional Conduct (www.legalethicsforum.com)
- “What Do Other People Do?” (willsandwealth.wordpress.com)
- 3 Major Guidelines for Making Sure That Your Plan Works (dgvelaw.blogspot.com)