Thursday, January 30, 2020

Stay In Your Own Lane: When non-lawyers give flawed legal advice

Stay In Your Own Lane: When non-lawyers give flawed legal advice
January 30, 2020
By: Melinda Gustafson Gervasi

With a deep, long sigh my frustration and annoyance was revealed to the client sitting across my conference table.  It's hard to hide it anymore.  After 15 years of counseling clients on the ins and outs of estate planning and probate, I wonder what my work day would be like if I did not have to spend so much time unwinding flawed legal advice dispensed by non-lawyers.  It's the financial planners, bankers, and in some cases tax experts that fuel my trademark sigh. 

Don't get me wrong, I value the advice these experts provide on mortgages, index funds, and tax deductions. I just cannot tolerate it when they veer out of their lane, going full speed ahead with brazen authority, dispensing directives on what my clients can, and cannot due, within legal documents.  I stay in my lane, eyes on wills, powers of attorneys, trusts, domiciliary letters and the like.  I will not counsel on aspects of a mortgage, investment diversification, or whether a tax return should be filed.  I know enough to see red caution flags and direct my client to seek the advice of the appropriate expert.  But I do not give advice outside my area of focus. Sadly, this is not always the case when it comes to the law.

The importance of staying in your name no matter the horsepower.  Image by M. Gustafson Gervasi 2019
Doing well in a "business law class" as part of an MBA program does not make you a lawyer.  Listening to a lawyer present on the difference between probate and non-probate assets does not make you a lawyer.  Reading an article in the Wall Street Journal on the use of a trust in estate planning does not make you a lawyer.  Even going to law school and passing the bar does not mean one should counsel on estate planning and probate unless that is the person's area of focus.  What happens when these guidelines are ignored, when people veer out of their lane?  Accidents.

Accidents in estate planning and probate have consequences.  Inadvertent tax liabilities develop.  A well thought out and planned estate plan is pushed aside when a beneficiary form on an asset is filled out in a way that does not parallel the will or trust.  And clients can move their business elsewhere when they learn what they were told, "you simply cannot due xxxxx", is in fact wrong.  Dead wrong.  Dispensing bad advice puts your client on the exit ramp from your office, usually with a pit stop in my conference room for clarification.

My take-away for you -- just because it is free advice does not mean it is advice you should act on.  Moreover, a blog is not legal advice.  A post captures my thoughts and reflections from this side of a  lawyer's desk.  Please seek legal counsel from an attorney licensed in your state of residence.  And thank you for reading.

No comments: