Lawyers shall not tolerate harm, not simply to avoid consequences, but because it’s their duty to prevent harm.[1] Thus, this series of articles looks to prevent harm within the Arizona Estates and Probate arena.
Injury After Death
It’s really appalling in kind of a sad ironic way how much injury occurs after death. We often overlook the idea that an individual’s estate and the associated legal obligations continue after death, and as such, their legacy may be adversely affected.
Consider the case when someone created a Will and mistakenly treated her two children as being different from each other. See Hopper v. Beavers, 841 N.E.2d 1019 (Ill. App. Ct. 2005). This led to a legal dispute that eventually, although costly, clarified the testator’s actual intentions. If the estate planning was done properly with clear language, the costs and stress could have been avoided.
Many people fear their death, making it difficult to even think of planning their estates. Thinking about death can be stressful, especially when already dealing with the stresses of life. The pain is worse if you don’t have resources for legal help and have to do it yourself or try and save costs with a document preparer that can’t give legal advice. Even worse if incompetent lawyers make mistakes that allow unnecessary disputes between family members over assets. This leads to unnecessary waste, friction and division within families that could otherwise peacefully move on with the deceased parties’ intentions.
For these reasons and more the challenge of helping clients is a a sensitive arena, and why legal practitioners must seriously consider their role as counselors.[3] Estate lawyer are counselors and their effectiveness in the role depends: “Whether the lawyer realizes what he is doing, is able to accept what it involves for himself and for his client, and has the wisdom and courage to be a helpful companion.”[4] This aims at helping lawyers be more equipped as counselors, and helps clients know what to expect from their lawyers.
Therapeutic Jurisprudence
Estate lawyers can provide better guidance when approaching the process with a focus on therapeutic jurisprudence. This means the law can actually help alleviate stress. It is interesting that planning can be too overwhelming to start actually is a therapeutic process when handled properly. The general theory of using the law for stress relief comes from a legal scholar named Bruce J. Winick,[5] while Mark Glover barrows from Shaffer’s counselor idea to apply it within the estate planning arena.[6] This process requires lawyers to develop their emotional intelligence (EQ, a term from Goleman), which thankfully is more attainable (as he says, more “elastic”) than IQ.[7] Yes, effective lawyers sometimes bring in other resources, like psychology and neuroscience to act most effectively to treat their client’s issues.
Lawyers act skillfully at guiding people through complex legal process by simplifying difficult concepts. For example, the topic of this article, which is about warning people about liability seems complicated. However, warning signs appear during the drafting stage and continue all the through to the succession process (i.e. the process of inheriting). That idea is simple. While it is the lawyer’s duty to inform his clients,[8] especially about potential liability, it also makes for a great life experience to empower a client decision-making while informing them.
Possible Fiduciary and Agent/Employee Liability — Audience
This project looks to prevent harm through simplifying areas of liability within estate planning.
We have the following groups in mind: non-legal individuals (either clients or those possibly acting in a fiduciary role), legal professionals (lawyers and their staff), and law firms developing best practices.
Our first goal is to educate individuals who do not have a legal background. We want to ensure that people’s interests are protected, and they are aware of when to take legal action if a lawyer or fiduciary could cause harm, with the goal of avoiding harm. We also aim to help people understand when they operate as fiduciaries, helping people avoid liability when they don’t even know have it, and informing when breaches occur. People are usually unaware when they have fiduciary duties, let alone the legal duties (and liability) associated with the role. Therefore, we believe it essential to understand when to seek legal advice, as every situation is unique, and no single article offers comprehensive advice.
In addition, we aim to support the legal profession by assisting attorneys in avoiding malpractice, ethical rule violations, and overlapping liabilities when advising a fiduciary. We also assist firms in developing best practices, coaching staff, and implementing policies and procedures that protect against potential liability.
Liability Regimes within Arizona Estates and Probate Law — Outline
We discuss three areas of liability within estate law: (A) malpractice, (B) ethical duty violations, and (C) breaching of fiduciary duties.
As discussed, these areas of liability often overlap. The governing law is state statutes, including Ethical Rules and Rules of Probate Procedure, cases, and Restatements where the state adopts them.[9] Here we mainly consider Arizona Law. Other jurisdictions adopting Uniform Probate Code also offer persuasive authority, and principles here might be instructive there.
[1] AZ ST S CT RULE 42 RPC R. 42, Refs & Annos. (Lawyers are to ‘conduct themselves honorably’ in carrying out their ‘vital role in the preservation of society’ by governing themselves and helping lawyers comply with the rules).
[2] See Mark Glover, A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle U.L. Rev. 427, 434 (2012).
[3] See Thomas L. Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 IOWA L. REV. 376, 382 (1969).
[4] Id.
[5] See Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 Psychol. Pub. Pol’y & L. 184, 184–85 (1997).
[6] See Glover, at 443.
[7] Daniel Goleman, Emotional Intelligence 34 (Bantam Books 1995) (while many argue IQ is set, Goleman shows how EI can improve because it involves a more adaptable parts of the brain).
[8] See AZ ST S CT RULE 42 RPC ER 1.4. See also Matter of Manning, 180 Ariz. 45, 46–47 (1994).
[9] See In re Herbst, 206 Ariz. 214, 217, ¶ 17, 76 P.3d 888, 891 (App. 2003) (citing Wetherill v. Basham, 197 Ariz. 198, 203 ¶ 13 (App. 2000)) (“We follow the Restatement in the absence of contrary controlling authority”).
- About the Author
- Latest Posts
Peter graduated from the Arizona State University Sandra Day O’Connor College of Law. His work background is Christian Ministry, Commercial/Residential Property Management, and Real Estate. He is passionate about protecting elders, helping families, and guarding business and personal assets. Peter loves researching, especially the liability regimes within Estates and Probate.
