Professional Responsibility

Mr. Roberts Seeks to Disinherit His Daughter

You have represented William Roberts, a local businessman and operator of a hardware store, for over fifteen years. Roberts is 68 years old. The town where you practice is sufficiently small that you know Roberts to be a decent man and a respected member of the community.

Your records indicate that it has been eight years since you prepared a will for Roberts. Mr. Roberts is now in your office for the purpose of revising his will. Roberts is upset. His 24-year-old daughter Lisa, recently divorced, has decided to move to Scotland and live in a New Age community called Findhorn. Roberts has grown attached to his granddaughter Tricia, who is three and a half. Roberts is upset about Lisa's decision and the fact that he will be cut-off from his granddaughter. He was unhappy when she divorced a young man that Roberts had always liked, but he is now angry and upset. Roberts has told Lisa he will write her out of his will if she moves to Scotland.

During the course of the conversation about the new will, it becomes evident that Roberts is disdainful of Lisa's continued "idealism" and the "ridiculous notion" that his granddaughter will be raised in a "commune." Roberts feels that Lisa should settle down, get a job, support her daughter, and remain where she will have the love and support of an extended family. Roberts has offered to help Lisa by supporting her while she finishes her degree in education, which she could do in three semesters.

During the conversation with Mr. Roberts, you recall having read a Time magazine article on modern utopian communities. Time described Findhorn as a successful New Age community. The article makes clear that Findhorn, unlike some communes, is not based on a cult, but is a group of diverse people from around the world, who by their talents and willingness to work together have built a viable community. The community has been particularly appealing to artists and craftsman, and the community has developed several successful businesses, including most recently, a highly profitable web design company. The reporter for the Time article found it significant that Findhorn did not attempt to interfere with its members' relationships in the outside world, emphasized sexual monogamy, and did not require or encourage its members to turn over their financial assets to the Findhorn community.

Mr. Roberts, obviously upset with his daughter, asks you to rewrite his will to disinherit his daughter. Does carrying out Mr. Roberts wishes present a moral/ethical problem for you?

More Wills and Estates Problems

 The client, a 58-year-old man, asks you to prepare a will that leaves his estate, estimated at four million dollars, to create a trust fund to take care of his five cats. The client has a brother and sister. The client never married.

 You represent Hilda Frank, a 78-year-old widow with a serious heart ailment. She has no children or close relatives. Mrs. Frank's earlier wills provided that the bulk of her estate go to her foster son, Mark Jensen. Mrs. Frank and her husband raised Mark, approved of his marriage to a friend's daughter, and later allowed the couple to move into the Frank's home and live there rent-free until they found a house. Mark considers the Franks his parents, although they did not legally adopt him. Mrs. Frank, in particular, was very close to Mark's daughter, Rebecca.

Dr. Patterson began treating Mrs. Frank two years ago. Thereafter, she lent him, without security, $25,000 for various real estate investments. One year ago, you prepared a will in which Mrs. Frank forgave the doctor's indebtedness to her. Your notes indicate she explained that Dr. Patterson was a wonderful doctor.

During the past year, she spent considerable time in a private hospital and was treated during her stay by Dr. Patterson. During her hospitalization, Dr. Patterson gave her flowers and made arrangements with another physician to perform an eye operation which was successful.

In talking with Mrs. Frank, she seems rather smitten with Dr. Patterson. She beams at mention of the doctor's name. She tells you, "I guess he is the son I never had." When you question Mrs. Frank about Mark Jensen, she indicates that one month ago when she was hospitalized, Mark had made unfavorable comments about her relationship with Dr. Patterson, and told her the doctor was "after her money." She was deeply offended and resented his interference in her personal affairs. She also indicated that, prior to Mark's visit, Dr. Patterson suggested to her that Mark Jensen was a difficult man to deal with.

Mrs. Frank now wants to draft a new will and leave her entire estate to her physician, Dr. Lawrence Patterson. Dr. Patterson is 38 years old. [Adopted from Lewis D. Solomon, Trusts and Estates: A Basic Course (Charlottesville: The Michie Company, 1981)]

 Consider the following conversation between Rodney Simmons and his senior colleague, Mrs. Stagg, from Louis Auchincloss, The Partners 32-34 (Boston, Houghton Mifflin,1973):

A case came up at last that made him wonder if he would not be believed to discover that his new boss was simply neutral in matters of morals. She asked him to review one of her estate plans whereby the rich husband of an incompetent was enabled to set up a trust in such a way as to throw the bulk of his estate taxes on his wife's children by a prior marriage, leaving the trust principal intact for his own.

"But the widow's property will all be gobbled up!"

"I don't know what you mean by 'gobbled up,' Mr. Simmonds."

"I mean that Mr. Pierson will have shoved the taxes that properly belong on his estate off on his wife's. His children will end up rich while hers are bust."

"It's an odd situation, certainly. I think I have handled it to the maximum advantage of my client."

Ronny stared. "But does Mr. Pierson know about his wife's will and the effect of this?"

Mrs. Stagg smiled thinly. "One thing you'd better learn right away, Mr. Simmonds, is never to ask what clients know. Mr. Pierson does not come to One New Orange Plaza for spiritual advice. He wants to look after his incapacitated wife with the minimum injury to his offspring. I think that is precisely what my plan will effect."

"You don't care that it does a hideous injustice?"

Oddly enough Mrs. Stagg did not seem to mind his intemperate language. "Is it illegal?"

"No."

"Is it unethical? By our professional canons?"

"I suppose not."

"Then I suggest, Mr. Simmonds, that it is my simple duty to accomplish what the client wishes accomplished. If a man chooses to leave his money to one person and not to another, is it my business to tell him he shouldn't?"

"Maybe not. But a paltry trick like this! To take advantage of a poor woman's incompetence to strip her children of their inheritance! How can you, Mrs. Stagg? I'm shocked!"

Her thin smile broadened a bit. "Well, I guess it's something to have shocked a veteran from Vietnam. We won't discuss it further. Leave the outline there."

She turned to her mail, but Ronny still stood there.

"Is that all?" he asked.

"What else should there be?"

"Do you care to have an associate working for you who thinks so poorly of your estate plan?"

"I don't care what any associate thinks of me, Mr. Simmonds. I am simply glad that you saw the point so promptly and that you agree with my analysis. Surely, there won't be many cases where you have to resort to conscientious objection. I suggest you forget this one."

Notes

  Consider Warren Lehman's observation in his essay, "The Pursuit of a Client's Interest," 77 Mich. L. Rev. 1078, 1079, 1091 (1979):

Doubtless many clients, thinking they know what they want--or wishing to appear to know--encourage the lawyer to believe he is consulted solely for a technical expertise, for a knowledge of how to do legal things, for his ability to interpret legal words, or for the objective way he looks at legal and practical outcomes. It is as if the lawyer were being invited to join the client in a conspiracy of silence; the point of the conspiracy is that in silence neither shall question the assumption that the means can be truly separated from the end and that the end is the client's sole problem and solely his. Such an idea of the lawyer's job seems to relieve him of the ethical responsibility that might be his were he to assume a duty to comment on the wisdom or virtue of what his client is about. I do not think the burden of commenting upon the client's purpose can be so easily avoided. The interaction of lawyer and client is a moral event, whether morals are explicitly broached in conversation or not. The question is not whether the lawyer can or ought comment, but what message does he convey.

The only thing the lawyer can do for his client is be free himself, which means free to be honest in saying exactly what he thinks and feels, to confront himself. It is transcendence for a lawyer to say to a client: 'I am fearful of influencing you unduly in this matter. The tax saving is there. It may be important to you to save the money. If so, by all means defer the gift. But money saving is not everything. One should hardly organize one's life around a revenue code. I will think none the less of you whether you choose to defer or not. Some people, I suspect, may be embarrassed--odd as it may sound--to ignore an apparent financial advantage, for to do so sounds irrational. "Let me assure you, I would respect most highly a man who will do now what seems right to him now. What sounds rational is not always humanly reasonable. . . ." The important thing about any such message is not that it be calculated to neutralize the legal-rational bias, the legal influence, but that it be honest and not intended to manipulate. Sometimes a side benefit of the speaker's honesty is a shock in the listener that shakes him loose and helps him be free.

 Further Reading: Thomas Shaffer, Will Interviews, Young Clients and the Psychology of Testation, 44 Notre Dame Lawyer 345 (1969)