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Articles : True Counselor

True Counselor

By: Avi Z. Kestenbaum

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New York Law Journal
January 26, 2009

As estate planning attorneys, we often find ourselves thrust into a role that transcends legal and tax implications and which compels us to act as family counselors to our clients despite a lack of formal training for such a role. In fact, this critical role is often overlooked and misunderstood, yet, arguably, it is more critical than the complicated tax planning and asset protection advice and legal services that we provide to our clients.

While many estate planning attorneys learn the applicable legal and tax-saving techniques through the combination of reading, training, and being mentored by a senior attorney, it is far more difficult to learn the skills required to become a trusted adviser and family counselor. Yet, in the grander scheme, it is only through this role that we truly influence “estate” dynamics for many generations.

Estate planning attorneys bear a tremendous responsibility. Our sagacious guidance and well-drafted documents can help foster healthy family relations, or, conversely, can break apart a family. We have the capability to provide, or to deny, hope to those who may need it the most, including the elderly, young, ill and persons with “special needs.”

This article explores these deeply personal aspects of our legal and moral obligations to our clients, which are so often lost in our day-to-day practice and myopic focus on tax savings and asset protection and wealth preservation. We suggest that perhaps all estate planning attorneys should be required to study courses in pastoral care, mediation, and related “client care” subject matters to properly guide our clients and create effective legal documents.

As an impetus to writing this article, one of the authors over only a two-day period a few months ago, found himself in all of the following situations: meetings with two different client families mediating estate disputes; a client wedding; a client funeral; shiva (seven-day Jewish mourning period) for a deceased client; hospital signing of “deathbed” estate planning documents; and a client charity’s fundraising event. These “activities” are not uncommon to all of us who practice in this field; yet are we really prepared and trained to handle them properly?

If we are to provide advice and services that transcend legal and tax implications and delve into mediation, psychology and pastoral care, do we possess the appreciation and understanding of the issues and the requisite skills to obtain the desired results? The better question might be, what exactly is our role, influence and responsibility as “estate planning” attorneys?

Common Questions

One might argue that the role of estate planning attorneys is to merely “create the will, trust agreements and other significant documents.” (“Weighing the Costs and Benefits of Mediating Estate Planning Issues Before Disputes Between Family Members Arise: The Scale Tips in Favor of Mediation.” Williams, Gary D., 16 Ohio St. J. on Disp. Resol. 819). However, experienced practitioners realize that our clients are more likely to ask for general advice, including answers to the proverbial questions, “what would you do in my situation?” and “what do most clients do in these circumstances,” as they are to inquire about technical provisions and tax savings.

The answers to these questions are found neither in state statutes nor in the Internal Revenue Code. By the same token, the answers we provide to these questions may change family dynamics forever. As an example, our client tells us she has two children, one more successful than the other, and asks us whether she should leave the less successful child more money than the more successful one. Or, whether to leave the child with more offspring more assets than the child with fewer offspring. Is it even appropriate for an attorney to offer opinions on “non-legal” matters which could have significant long-term effects, both monetary and psychological, to multiple generations and change the course of the family dynamics forever?

These are complicated, but very common examples. We are well aware, or at least should be aware, that many estate disputes have less to do with money per se and more to do with feelings of being unloved or disfavored, which we have a direct role in creating or negating.

A friend of the authors, while being interviewed for an associate position at a large New York City law firm with prestigious family law and estate planning practices, was asked what had attracted her to the estate planning field? She responded that she preferred its highly individualized nature to the often less personal transactional work associated with the corporate law practice. This response was greeted with silence, at first, followed by a senior partner in the estate planning practice group to remark, “Let’s see how much you like working with individuals and families once you’ve had a taste of our practice.”

While this comment was made partially in jest, it was confusing and disheartening to a then eager and optimistic law school graduate. The experienced estate planning attorney reading this article doubtless feels a moment’s empathy with the sentiment expressed by the senior partner. Perhaps at its root lies the simple truth that becoming too emotionally involved with the awesome responsibility of dealing with many of our clients with complicated situations makes us vulnerable as well.

Non-Legal Skills

The consequences of mortality are a main focus of our work. However, broaching the subject of mortality with our clients is never easy. While one generally associates the term “bedside manner” with the medical profession, it is perhaps equally important to the estate planning attorney. In fact, the estate planning attorney forces her client to address the two “certainties” in life – death and taxes – at the same time. Oftentimes this is the client’s first taste of facing and dealing with the consequences and challenges of death.

While mindful of confidentiality and ethical requirements, the responsible and caring attorney must explore with her client the effect that the estate plan will exert on the family dynamics, both pre- and post-mortem, and should work with her client to craft the type of plan that will foster the brand of family relations that the client ideally envisions and desires. It is important that the attorney’s inquiry into the client’s personal life delve into not just finances and family structure, but into family dynamics, history and relationships.

Every attorney asks her client about the client’s children and assets, but a truly skilled attorney must also ask the following important questions and similar follow-up questions based on the client’s initial responses: Do all of your children and grandchildren get along with one another? Do any of your children or grandchildren have substance abuse problems or any other issues that might impair their judgment? If a child is married, how long has the child been married and is his or her marriage stable? Is there an income and asset differential between your children? Has a particular child invested a disproportionate amount of time or money in a family business that is an asset of your estate? Are all of your children born of the same marriage? Are any of your children adopted? Did you make any significant gifts during your lifetime to fewer than all of your children? Do any of your children or grandchildren have current or potential business problems, creditors or special needs?

Oftentimes, the client may feel uncomfortable raising on his own one or more of the issues relating to the family dynamics. Furthermore, the client may also feel uncomfortable responding to the attorney’s inquiries regarding family dynamics, especially at a first or second meeting. The client might also wish to avoid sharing personal information with an attorney who is not licensed in psychology or a related area. Ultimately, it is the attorney’s responsibility to make the client feel comfortable and secure to facilitate a truly open conversation about their deeply private matters. Anything short of complete transparency can result in an estate plan that falls short of the client’s vision for his family’s future.

When the client feels comfortable and divulges the necessary personal information, the attorney is in possession of a sacred trust. However, the attorney should not feel that she must be able to solve all of the issues on her own. If the client has a trusted family or business adviser with whom he wants the attorney to consult, the attorney should take advantage of the insight that this individual might offer, while being aware of any personal interests the outside adviser might have. Of course, the attorney must also be sensitive to attorney-client confidentialities.

The attorney might also ask the client whether he wishes to consider a family meeting or session with a trained mediator or psychologist (Williams, Gary D., 16 Ohio St. J. on Disp. Resol. 819). Additionally, doctors often consult their peers for second opinions. Attorneys should do the same. For example, attorneys who specialize in estate administration may have a better grasp of how certain provisions will play out post-mortem than attorneys who concentrate in planning. (The authors’ personal view is that to be an effective estate planner, one must also have experience with estate administration as well.)

Lawyer or Attorney?

Of course, despite an attorney’s best efforts, there are some clients who will always resort to the age-old adage, “Let them fight. I’ll be dead.” However, with respect to the majority of estate litigation cases, one would be hard pressed to believe that if the decedent had foreseen the outcome of the planning before his demise, he would not have requested the necessary adjustments to tailor the estate plan and documents to better foster family harmony.

While in law school several years ago, one of the authors vividly remembers his professor asking the question, “What is the difference between an attorney and a lawyer”? Since no one in the class responded, the professor himself answered, ” A lawyer understands and practices the “law,” while an attorney is someone to whom the clients “turn.” While both positions are important, this distinction is especially critical to the estate planning attorney whose duty as an “attorney” might very well trump his role as a “lawyer.” This dual role becomes even more complicated in an increasingly litigious environment where “attorneys” have an ethical obligation to constantly remind ourselves that we might do better for our clients by keeping them OUT of the courtroom, though we must still be zealous advocates and “lawyers” for our clients.

The types of “non-legal” situations in which attorneys are asked for counsel are as diverse as our client base. Too often, attorneys try to push their clients to a solution that fits the “form” documents and planning. Fortunately, our clients’ lives are rich and varied, and it is our job to make sure that our counsel is a good fit for their unique situation. When an attorney is confronted with a situation that he has not handled before, he should speak to an attorney who has experience with that type of situation to properly guide his client.

In conclusion, the authors recommend the important issues addressed in this article should be raised in estate planning conferences, discussion groups and in-house at law firms. Awareness is a start. Further thought should be entertained regarding mandatory training for all estate planning attorneys to be certified in “client care” related subjects, such as, mediation, pastoral care, basic psychology of family dynamics, etc. Now, like never before, with the aging of the “baby boomers” and more and more assets passing to the next generation each year potentially subject to estate litigation and conflict, is the time to raise awareness and act on these issues.

Avi Z. Kestenbaum is a partner in the trusts and estates, tax, and tax exempt organizations practice groups of Meltzer, Lippe, Goldstein & Breitstone, in Mineola; he is also adjunct tax professor at Hofstra University School of Law and the Baruch College MBA ProgramRachel D. Mansdorf is an associate in the same practice groups at the firm.