Wednesday, July 15, 2015

Your Best Friend

Law practice is a business.  Make no mistake, it is a TOUGH business.  This doesn’t mean you have to be an insensitive lout to succeed, but you should to be AWARE of many things, such as…

The clients are not your friends. 

You can like them, you can care about them, you can empathize, you can feel their pain, and you can put your guts on the line for them, but they are not your friends.  The clients may even like you, but you are not their friend.  They want you to be a professional who works on their behalf.  They have a right to have expectations, and you have a right to look out for yourself.

You have a right to be treated with respect, to be told the truth, and to be paid in accordance with your fee agreement.  Sometimes these things don’t happen, and you have to look out for yourself.  How?  By being clear and direct when there are issues between you and the client that need to be addressed.  Clients often cannot address these issues with clarity and directness, nor should they be expected to, because they are your client, not your friend.  You are the professional, you have to be clear and direct.

The Court system and the Judges are not your friends.  You can and should respect them but you should know where they (and you) are in the scheme of things.  When you interact with them, you are in a business that requires you to serve your clients, and look out for yourself.   Who are the Judges and people in the Court system?   Are they in a business, like you?  Hardly. They are civil servants on a fixed salary.  There, I said it! 

When you make work for them they don’t like you.  They MIGHT care about people like your clients, but they might not.  They don’t want to take sides or ever be perceived as doing so.  SO, unless and until you put something in their face that forces them to care, they don’t care.  Often, they “care” only to the extent you have made them have to work.  This is often a big shock to clients, who think that when a case gets filed in the Court system, “the Judge” knows about it (they usually don’t), and that upon the initial filing they are interested (they aren’t), and that the Judge will somehow become “pro-active” based on seeing the merits of your client’s position (which almost never happens).
In reality Judges want the cases to be resolved without having to actually decide them.  When cases are being discussed in Court, the Judges and court personnel routinely refer to settled cases as “going away”.  As in “what would it take to make this go away?”  Clients don’t know that the Court talks about the cases this way, but they do. 
The Judges and Court system are not your friends.

Your adversaries are not your friends.  Sometimes a little dance happens in contested civil matters.  You need to negotiate on behalf of your client, with your adversary who is acting on behalf of his client, and lo and behold, you get along with your adversary.  I’ve become friendly with many lawyers who I first met as adversaries on a case.  It makes sense….I have more in common with them than most people I would meet.  The thing is, when you are involved in a case with them, they are not your friend.  (Paradoxically, sometimes your attorney adversary is indirectly your client’s best friend, because they are the only person who can convince your client’s adversary to do what is right)

In practice, while being aware of who your friends are (and aren’t), you have to continually do the three things that comprise a law practice (or any business):

Get new work

Do the work

Deal with the money.

Friendship has NO ROLE in any of these items, the essential elements of your practice.

Here’s what many of us do.  We are friendly, because it’s EASY and we are NICE. 
But if that causes you to not be attentive to getting new work, or doing existing work, or getting paid…

Then you are being awfully unfriendly to the person who should be your best friend…

YOURSELF

P.S.. – You can and should be friendly to yourself, and friendly to others.  You can even act friendly and with compassion towards people who you realize are “not your friends”.  Just remember to care about you.

Wednesday, June 10, 2015

Law Practice (and other business) Fundamentals

Due to deep seated psychological reasons, which years of therapy have not remotely addressed, I always believed I could not draw, paint, or do anything remotely "artistic". It's got something to do with my mother being an artist, and worrying too much about what other people would think about my artistic efforts. And yes, Dr. Freud, I know I married an artist, just to keep you amused.

However......once, in preparation for giving a talk on "Building a Law Practice", I made a little illustration. This is the only known work of its kind, created by my very hand.....
If I do not explain the meaning of this relic, I fear it may be later discovered and subject to mis-interpretation. The drawing is called "Law Practice Fundamentals". A law practice, or ANY business, is based on THREE basic things:

1. Getting the business.

2. Doing the work.

3. Managing the finances.

If a law practice (or ANY business) is having "problems", the source is often one (or more) of these issues.  All these issues can be addressed and improvements can be made.  This is a matter of clear thought, action, assessment, and adjustments.  All the things we all know and sometimes even do.

The BIG challenge is to work all three elements simultaneously.

Most new law practices consider themselves initially challenged with Item #1.  I maintain this is easily overcome, and once business is brought in, the challenges of #'s 2&3 will present themselves.  Of course, once we are working really hard (probably too hard because we half didn't expect to succeed at #1), the inclination is to stop getting new business and/or lose track of financial issues.  After all, we are SO busy, so things must be OK.

Then, after we do all that work but the bottom line doesn't measure up, we focus on that.  And fall behind on the actual work, and of course, still no time to go back to #1. 

So then, we work on #3 and chase down some money, but we have no new business, and so we begin the treadmill again.

Try not to do this.  Or shall I say....DON'T DO THIS!!!!

These things are all related and inter-related. 

When you market and network, have systems in place to handle the work efficiently.

Make good decisions on which matters to take (and reject) and think about the fees and billings and collections at the outset.  Money problems generally arise out of defects in #'s 1 & 2.  (We market for or accept unprofitable matters or we work inefficiently)

Law practice (or any business) requires seeing all 3 elements, and addressing them consistently.



Wednesday, March 11, 2015

Probate Complexities: Part 1

In the last post I set forth what an ideal (easy) probate would look like, noting that varying a few factors can add serious complexity.  Here are a few variations and how they play out:

- A Will that is not attorney prepared and/or supervised.  These can be harder to probate because of certain legal presumptions.  When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done.  This can be overcome, but the burden is on the potential objectants.  It is a heavy burden. 

On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution.  This is a heavy (and dangerous) burden.  It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).

Nobody can actually remember this stuff.  When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.

Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will.  They now have a burden they would not have had if they had used an attorney.

To be clear on this....the above refers to the actual Will execution.  Other grounds that someone might have to object could still be pursued.  That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.

2.  Two witnesses and a witness Affidavit.  The law in NY is TWO witnesses.  Not one.  Not one plus someone who is also a beneficiary.  Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will.  This essentially says they were there, they signed, and everything that was supposed to be done, was done.  It saves everyone from having to locate the witnesses years later.  It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.

This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step.  Very bad.  Very inconsiderate to the people trying to probate the Will later.

3.  We only have a copy of the Will, not the original.  This can be a BIG problem.  You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome.  There must be testimony regarding what happened to the original.  And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!!   You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible.  Probating a copy is very high pressure and stressful because many things can go wrong. 

This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be. 

Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive.  It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.

Next post - More probate complexities.

Sunday, March 1, 2015

Probate "Complexities"

To understand things that would add complexity to probating a Will, it is useful to look at what an ideal (and easy) probate looks like.  The complicated situations occur when one or more of these simplifying factors are missing, or when some troubling variation is in play.

In an ideal situation, we have the following:

- An attorney prepared and supervised Will.
- Two witnesses have signed the Will, and also signed a Witness Affidavit.
- We have an original Will, not a photocopy.
- There are no corrections, deletions or alterations on the Will.
- The staples have not been removed.
- We know who the distributees (people who would inherit if there were no will) are, and we know where they are.  AND, even better, they will sign a Waiver.
- We have a Will that names an Executor and that person is alive, willing to serve, and doesn't have anything about them that would prevent them from serving.
- The Will doesn't do anything that would tick off an interested party.
- The terms of the Will are clear and easy to understand.
- The person's non-probate assets (i.e. - accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.
- There isn't a spouse  being cut out in the Will (thus triggering a right of election).
- The death certificate lists an address in the County you think it should.
- There aren't big creditor claims, or Medicaid liens, or open taxes (or years of unfiled taxes when they should have been filed)
- We know what the assets are and where they are....and nobody has been plundering them with a power of attorney.
- The person did their Will a few years ago (as opposed to a few days, or hours, before they died)

Contrary to what many people think, most Wills fit the profile above.  Things need to be done, and they can be easily done.

Of course, there are many situations where one or more of the above complexities are in play.  They can all be addressed, but they take some know-how, some expense, and some time. 

These issues are precisely the reason why I cannot answer the question "How much do you charge to probate a Will?"  I answer that question AFTER I know about the existence, and extent, of the complexities. 

Next post - How do we deal with some specific complexities?

Monday, February 16, 2015

Probate - The Non-Dirty Word

The word "probate" is often tossed around as something to be avoided.  As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.

On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.

But what is actually being avoided?  Is avoiding it worth the effort?

What is probate, actually?

In New York, probate means that a Will has been recognized by the Surrogates Court as proper.  The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called "Letters Testamentary".  That is the Executor's proof that he/she has authority to act on behalf of the Estate.

When there is a Will, in order to transfer any asset that was owned in the name of the deceased person, you need Letters Testamentary.  This applies to bank and brokerage accounts, real estate, co-op apartments, and any other assets.

If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account?  Nope.  The bank will tell you to come back with Letters Testamentary. What they are really saying is "get the will probated".

Probating a Will is a Surrogate's Court proceeding.  The specific facts and circumstances will determine whether it's simple (and many times it is) or complicated.

I've heard people say that many procedures were "invented by lawyers to make things complicated so lawyers can make money".  I see it quite differently, and I would summarize the need for these proceedings as follows:

"There is no end to the creativity and deviousness of some people when it comes to not doing what is proper, ethical, moral and legal.  The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit.  Related to that is sometimes it's just not clear that the "Will" in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)" 

Since there is no way for the Court to know in advance whether a particular Will has "issues", all Wills have to follow the procedures.  That being said, VERY often you can identify the interested parties, they can all sign a "Waiver and Consent", and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.

Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous.  If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will?  Certainly, but we lawyers didn't create a system to encourage that.  Personally, I'd rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases.  But hey, we can only play the hands we are dealt.

Probate is not a dirty word.  It's a necessary proceeding so that a Will can be carried out.  Next post, issues that can arise which may add complexity.

Tuesday, January 20, 2015

More "Little Things" That Affect Probate

The more one practices in a particular area, the more "little things" one encounters.  Some of them hardly ever happen, but surprisingly, some are quite common.  All these little things affect how the case proceeds, how much work the attorneys have to do, and how long the matter may take.  Here are just a few "little things"....

1.  Sometimes a person has a right to inherit, but before they receive their inheritance, they die.  We call these persons "post-deceased".  A post-deceased person does not lose their rights, their estate has whatever rights they would have had.  In Surrogates Court, an "estate within an Estate" is quite common.

2.  What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding?  Same result as above, their estate must be notified.  Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate.  Very frustrating.

3.  A person cannot serve as a fiduciary if they were ever convicted of a felony.  I once found out my client was a felon after I had gotten him appointed.  While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment.  I was called in and asked about it, so I had to testify about what I knew and when.  Not pleasant, and fortunately no repercussions, but a lesson learned.  Now I always ask.  Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago.  I told her I was sorry, but I could not file a probate petition for her.

4.  What if someone was a convicted felon but has a "waiver of civil disability" from a court?  I once had this situation, where my client was opposing the person being appointed.  In such a situation it is discretionary, and the Judge appointed this low life (my opinion).  Now we will end up fighting during an accounting proceeding because this person has acted quite badly.

5.  What if inheritance rights depend on establishing paternity?  I've been involved in quite a few of these.  There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases.  Complicated stuff but very interesting.

The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE.  Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.

Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play.  When it does, it's nice to know a lot of little things.


Monday, December 22, 2014

10 Year End Law Practice Observations

As the year ends we often reflect on the state of our practice.  When we do this, we are really looking at three things:

- How/what have we been doing?
- Where are we now?
- Where do we want to go?

Here are 10 observations gleaned from opening my own practice right out of law school, and still going at it 32 years later: 

1.  Clients are in your office because they need help solving a problem.  Thus, by its very nature, law practice involves dealing with people who have problems (on many and various levels).  If you don't like this, things will be rough.  (Note - it took me a long time to figure this one out)

2.  To do lists are OK.  Way better is a prioritized list where item #1 gets finished.

3.  Making good referrals is a win-win-win (for you, the referred attorney, and the client).  Commit to making more excellent referrals.

4.  If you have matters where you should be billing, BILL and follow up.  Not everyone has a problem with this, but some do.  If this is you, commit to improving.

5.  If you have a list of things you SHOULD do, notice how often you say this and how you are short-changing yourself.  If you say you should have a better website, or a blog, or a practice management program, start DOING IT!!  Related to this is:  If you need help, get help.

6.  If you have cases where you know you should end your involvement, take action.

7.  Recognize that even if you made some bad decisions last year, you made a lot of good ones.  A collective pat on the back is in order.

8.  While you are waiting for you career to get going, in reality it is already happening.  

9.  Knowing that you can refine how you define (yourself) is very empowering.

10. As tough as law practice can be, when you look back and are able to say "What a long, strange trip its been", you will smile and know that it was worth it.

Happy holidays and New Year to all!!!