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 an 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 of Hopper v. Beavers, 841 N.E.2d 1019 (Ill. App. Ct. 2005) where a testator mistakenly treated her two children as being different from each other. This led to a legal dispute that eventually clarified the testator’s actual intentions. However, if the estate planning had been done properly with clear outlines and safeguards, such issues could have been avoided entirely.
Many people have a fear of death, which makes it difficult for them to plan for their estates. This is because thinking about death can be stressful, and it can be made even worse by factors such as incompetent lawyers, breaches of trust, and disputes between family members over the distribution of assets. This can lead to wasted estate assets and further divisions within families.
All these reasons and more show the challenge of helping clients in this sensitive arena, and why one legal scholar wants estate-planning attorneys to seriously consider their role as counselors.[3] Shaffer does not question whether the estate lawyer is a counselor, only his or her effectiveness in the role: “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] These articles aim at helping lawyers becoming more equipped as counselors, and helping clients know what to expect from their lawyers.
Therapeutic Jurisprudence
Estate lawyers can provide better guidance when they approach the process with a focus on therapeutic jurisprudence. This means that the law can actually help to alleviate stress. It is interesting that planning for what happens after death, which can be too overwhelming for many, can actually be 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), which thankfully is more attainable (more “elastic”) than IQ.[7] Yes, effective lawyers sometimes bring in other resources, like psychology and neuroscience.
Lawyers are skilled at guiding people through complex legal processes by simplifying difficult concepts. For example, the topic of this article, which is about warning people about liability, may seem complicated. However, warning signs appear during the drafting stage and continue all the way through to the succession process. 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’s decision-making.
Possible Fiduciary and Agent/Employee Liability — Audience
This series of articles 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 causes harm. We also aim to help people understand when they operate as fiduciaries, and the extent of fiduciary duties to prevent any breach, and even warn of potential liability when a breach occurs. Usually, people are not aware when they are operating as a fiduciary, let alone the legal duties associated with the role. Therefore, we believe it is essential for individuals to understand when to seek professional legal advice, as every situation is unique, and no single article can offer the most accurate advice for a particular situation.
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 issues.
Liability Regimes within Arizona Estates and Probate Law — Outline
We will discuss three main theories of liability within estates and probate: (A) malpractice, (B) ethical duty violations, and (C) breaching of fiduciary duties.
As will be discussed, these main 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] We will mainly consider Arizona law, while jurisdictions that also adopt the Uniform Probate Code offer persuasive authority.
[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”).
