Estate Planning, Probate & Elder Law Attorneys

» Warren Buffett's Humorous Threat
Deconstructing a pretty good joke, and the investment lesson held within.

» 9 Ways to Develop Team Motivation
Take a cue from the ancient Greeks to help steer your employees to success.

» The Big Banks Fire, Lazard Hires
This contrarian move speaks volumes.

» Jane Bryant Quinn on Prenups

Financial columnist Jane Bryant Quinn has an interesting article on newsweek.com entitled "Prenups Aren't For Sissies." It's available here.

The interesting thing is that Ms. Quinn is writing about prenups from experience -- she's actually just executed one, as she is getting remarried. As she puts it,...

It's one thing to write about prenups, as I have before, and quite another to live through their making. Most decisions were easy. One, however, required us to dig into feelings that were hard to talk about. Embarrassing, even. Doing prenups isn't for sissies.

» Conflicts of Interest and Referrals

Probably the two biggest areas for potential conflicts of interest in estate planning are:

1. Where the estate planner represents husband and wife (I discussed this here); and

2. Where the estate planner represents multiple generations of the same family (I discussed this here).

A third area of potential conflict involves referrals. Let's say that I as an attorney receive a fair amount of business from a financial planner with Firm X. Firm X refers me a new client. To whom do I owe a duty: the client, or Firm X?

The answer should be simple -- I owe the duty to the client. I spell this out clearly in my engagement letter to the client; I also talk to the financial planner about it, to make sure he or she understands who I represent.

In most cases, there's absolutely no problem, but a problem can arise if the financial planner wants me to benefit Firm X in some way, particularly if the financial planner wants Firm X to act as a fiduciary. In that case, I discuss the issue with the client, and present the client with the pros and cons of having a corporate fiduciary (and of having Firm X in particular). The client makes the final call, of course.

What happens if Firm X wants me to do a "hard sell," and convince the client that Firm X needs to be the fiduciary. At that point, I tell the client what Firm X is trying to do, and try to make it clear yet again to whom I owe my duty. If that means no more referrals from the financial planner, so be it. This MUST be the approach that an ethical estate planning attorney takes.