Is your attorney right for the job?
The last article described some inherent risks of a do-it-yourself estate plan. However, even when an estate plan is created by an attorney, the key to having a comprehensive and valid portfolio is the attorney’s competency to prepare such documents.
An attorney has a duty to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The preventive actions either ordered or voluntarily assumed during the COVID-19 pandemic have had, and continue to have, a tremendous impact on businesses, including attorneys and law firms. Depositions are being canceled and hearings and trials are often postponed. Clients, in order to save money, are suspending or even canceling legal services.
The novel reality imposed by the pandemic’s protective measures has forced businesses to adopt new methods of operation. To survive, some are working remotely and others are offering modified services. For many attorneys unable to sustain their current practice, it means having to expand the legal services they offer into other areas of practice. That expansion often includes estate planning as the anxiety caused by the pandemic has raised the need for urgent preparation for future health and financial planning.
It is difficult to switch practice areas, especially within a very short timeframe imposed by the need to generate income. A failed attempt would likely result in a harmful outcome for the client. The ability to do it successfully depends on the attorney’s academic background, legal experience, skills, and preparation. Different types of law require the use of vastly different skills. For example, an attorney whose background includes science and who practices intellectual property, may quickly thrive in the area of parent law, but not litigation or estate planning. For that reason, attorneys seek other attorneys to represent them in matters with which they are unfamiliar.
Therefore, before an attorney who has not practiced estate planning in the past agrees to enter into an attorney-client relationship for the purpose of preparing such plan for a client, such attorney should determine whether he or she possesses the required legal knowledge and skill to competently assist the client. While expertise in a particular area of law is not required, an attorney should decline representation if the client’s needs require skills beyond the attorney’s ability. An attorney’s lack of experience can otherwise result in an incomplete plan or in a failure to appreciate the specific details of the client’s family dynamics which in turn can lead to a creation of an estate plan with unwanted consequences.
In many states, the coronavirus pandemic caused the bar exams to be postponed. In very few select states, law school graduates will be able to practice temporarily without taking the bar exam if they practice under the supervision of an attorney in good standing.
The conditions of the legal market have forced some attorneys without prior experience in estate planning to choose it as their practice area or to suddenly switch their area of practice to estate planning. Being aware of this fact as well as being familiar with the competency standards when selecting an attorney will help a client decide on one who is capable of providing competent representation.
When seeking legal services for estate planning or in any other matter, a client should not hesitate to ask the attorney about their qualifications and experience.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.