THE
GOOD
LAWYER
Estate planning
is a practice area where the potential
difference between the asserted interest of
the client and the true interest of the
client can sometimes be obvious. Consider
the story told by my father-in-law, Orville,
who practices estate and tax planning in
rural Iowa.
Hilda
announced, in a voice that held no hint of
doubt, “I want Harold taken out of my will.
I’d like you to rewrite my will so the farm
goes only to Nancy and Glen, not Harold.”
Orville had done legal work for Hilda for
over thirty years, and this was small-town
Iowa where secrets didn’t last long, so he
didn’t need to ask the reason for the
change, but he did anyway. “It’s Donna,”
Hilda said. “I just can’t stand that woman
he married. She shows me no respect
whatsoever. The thought of even a penny of
my money going to that woman makes me sick.”
“Hilda,” Orville asked, “what will Harold
feel like when he finds out you’ve left him
out of your will?” “Well,” Hilda replied,
“he won’t like it, of course, but he made
the decision to marry that arrogant woman.”
“How about your other kids, Nancy and Glen?
Will they think it is fair when their
brother gets nothing and they each get half?
Do they want their brother punished because
of Donna?” “Well, maybe not, but they’re not
the ones that have had the run-ins that I
have.” “Let’s talk about our overall goal.
Do you think our goal should be fairness? Is
that what we should be shooting for? Or is
it more important to tell Harold how upset
you are?” “Well, I guess fairness is more
important—but I do want to send a message.”
“You know, Hilda, when someone thinks they
haven’t been treated fair, they often think
about suing. Now, I’m not sure Harold would
do that, but you are in your late 80s and
sometimes questions get raised. When there’s
a suit, the will becomes a public document
that anyone can see, and lots of money ends
up going to lawyers. All of your kids could
pay a price, in time, stress, and money.” “I
see that; it could make a mess of things.
But I just have to—maybe I’m not as good a
person as I should be—but I just have to get
back at Donna for what she’s done to me.”
Orville paused before proposing a solution
to Hilda’s problem. “How about this, just as
an idea: Let’s leave the rest of the will
the way it is for now and we add a provision
telling Harold how disappointed you’ve been
with the way Donna’s treated you. You could
write whatever you want, anything you’re
comfortable with, and we can put it right in
the will.” Hilda thought for a minute before
she answered, “That seems good to me. I’ll
write something up.”
Let’s
consider what happened during this brief
exchange in Orville’s office. Rather than
immediately agreeing to Hilda’s request to
remove Harold from the will, Orville first
sought to determine the reasons for his
client’s request. He then asked her to
consider the effects that her decision would
have on others—to imagine the future she was
creating. Then, once he thought he
understood her true interests, Orville
suggested an inventive course of action that
left Hilda satisfied and prevented harm to
others. In proceeding as he did, Orville
sent Hilda out of his office happy and most
likely averted a lot of family divisiveness
and disappointment in the future, but the
skills he used to do so are not those
generally taught in law schools. The typical
Trusts and Estates course explicates rules
relating to intestate succession or
revocation of wills, but rarely will a
professor take the time to discuss when it
might be a good idea to encourage a client
to write for a will a provision that has no
legal effect whatsoever....
Seeking Quality in the
Practice of Law
by DOUGLAS O. LINDER and
NANCY LEVIT (Oxford
University Press, 2013)
The Good
Lawyer
About
The Good Lawyer
Preface
Introductory
Note
The
Good
Lawyer is Courageous
The
Good
Lawyer is Empathetic
The
Good
Lawyer Has a Passion for Justice
The
Good
Lawyer Values Others in the Legal Community
The
Good
Lawyer Uses Both Intuition and Deliberative
Thinking
The
Good
Lawyer Thinks realistically About the Future
The
Good
Lawyer Has Ample Willpower
The
Good
Lawyer is Persuasive
Seeking
Quality
Quotes
Random
Facts
The
Happy
Lawyer
Excerpt from Chapter 7:
The Good Lawyer Serves the True Interests of
Clients