Should Practitioners Advocate Charitable Giving?

By Avi Z. Kestenbaum and Shaya Slomovics

An issue that often arises in the attorney-client relationship, as within some other professions, is the nature and extent that attorneys should be shaping and guiding their clients’ objectives and wishes. Should attorneys be active participants with their clients and advocate for what they, in their “professional” opinion, believe is the most proper and moral path for their clients to take? Or should clients identify the general goals to achieve, leaving the practitioners’ role limited to providing an assessment of the available options and then helping clients achieve their desired objectives? That is, should attorneys be using their own ethos, ethics and morality when advising clients, and should this be part of their “professional opinion”? Or should attorneys limit themselves to the law itself and the clients’ wishes, without juxtaposing their own feelings and agenda? In reality, neither the question nor the answer is simple or straightforward.

In the field of estate planning, this issue can arise when attorneys decide whether to advise their clients to make charitable donations either during lifetime or after death. Estate-planning attorneys may grapple with whether it’s in fact part of their role to encourage their clients, particularly affluent ones, to make charitable donations or whether they should only be involved with this endeavor on their clients’ stated wishes and objectives. Most agree that estate planning attorneys can and should inquire about their clients’ charitable intents, but whether they should actively push for and advocate philanthropy is a more complicated question. Here are the for and against arguments that can be made regarding this issue.

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