Wednesday, April 22, 2015
What to do about an estate lawyer who misbehaves
Posted by Lynne Butler
"I am an Executor going through a rough time and dealing with lawyers that have misbehaved. My lawyer wants to 'get off the record'. What he has done is unbelievable. I have conducted myself accordingly in every respect. Lynne, I would like to see an article on how to deal with lawyers that misbehave."
Before deciding that the lawyer has misbehaved, make sure that you have all the facts. There are a few situations that play out over and over again simply because people don't necessarily understand what the lawyer is actually supposed to do. Here are a couple of the most common issues that beneficiaries find problematic:
1. The lawyer won't do what the beneficiaries ask. This usually refers to a request for a copy of the will or other paperwork, or a demand that an estate asset not be sold. The fact is, the lawyer doesn't work for the beneficiaries; he or she works for the executor. The lawyer is not going to take instructions from someone who isn't his client. Also, the lawyer can't send paperwork to you without the executor's consent.
2. The lawyer is letting the executor get away with things that are illegal. You may be under the impression that the lawyer has more control over the executor than is the case. Firstly, an executor who wants to get away with something probably hasn't told his lawyer about it. The lawyer may hear about the illegal activity for the first time from you. You also have to understand that a lawyer can't make an executor do anything. If the executor insists on taking advantage of the estate despite the lawyer's advice to the contrary, the only thing the lawyer can do is "withdraw from the record".
3. The lawyer is friends with the executor or with one of the other beneficiaries. To put it bluntly, so what? Everyone has friends, even lawyers. Believe it or not, lawyers are not interested in risking their license by taking illegal actions for every person they happen to know.
When executors get frustrated with their lawyers, it's often due to a misunderstanding about the lawyer's role and how it interacts with the executor's role. This is usually due to miscommunication. The lawyer's responsibility is to be very clear about what he/she is going to do for the executor, when he/she is going to do it, how much it will cost, and about the tasks that the executor has agreed to carry out himself. The executor's responsibility is to ask questions until he/she thoroughly understands what the process is going to be, and to give clear instructions to the lawyer.
Once an executor has had a meeting with the lawyer in which they agree on the above, the lawyer should immediately send a letter to the executor confirming the arrangement. In my practice, that confirming letter usually ran several pages because I set out the steps needed in the estate in a way that the executor could use as a kind of checklist. At the end of the letter, I asked the executor to sign an acknowledgement of the agreement and return it to me. When I didn't get that acknowledgement back, which happened on occasion, I knew the executor hadn't actually read my letter.
An executor who doesn't receive a letter confirming the details of the arrangement and the fees should insist on getting one. It will save a lot of headaches later on.
Once the initial arrangement is confirmed, executors sometimes have other issues with their lawyers. The complaints I hear most often are:
1. The lawyer says he is going to do something, but he never does.
2. The lawyer can't be reached and won't return phone messages or emails.
3. The lawyer's bills are too high.
The first two complaints have no defence. Any professional who commits to a task during a particular time period should complete the task, or at least let you know what has happened that makes it beyond his control to finish it. However, some lawyers are overly busy or disorganized, and some files become neglected. That's not something that a client should tolerate.
Examine your own behaviour to see what kind of client you are. If you show up at the lawyer's office without appointments, or forget to advise about important deadlines, lose paperwork, or withhold information, no lawyer is going to be able to make you happy because you're sabotaging the work.
If you are convinced that your lawyer has done something that merits a complaint, your best option is to contact the Law Society (NOT the Bar Association) of the province in which the lawyer works. You would have to make a written complaint with details of what happened, or didn't happen. The Law Society would ask the lawyer for a written response. From there, a whole range of things can happen. Sometimes there are hearings held in which the lawyer has to appear and explain himself. There can be consequences ranging from paying a fine to being disbarred, depending on the circumstances.
If the problem is that the bill is too high, look for an officer of the court who is usually called a taxing officer. There are different names for this in different provinces, but basically it's a person whose job it is to review lawyers' bills - with the lawyer and client present in the room at the time - to see if the bill was reasonable. Before you do this, make sure that you understand how much of the bill was actually for lawyer's fees and how much was for disbursements (expenses paid out by the lawyer on your behalf such as court fees, land title searches, couriers) and GST/HST.
I haven't had very many files in which I've withdrawn from the record. When I have done so, it's because my client simply won't accept the advice I'm giving. I don't see the point in having clients who ignore what I advise and then want me to do work that I don't agree should be done. Once a lawyer and a client reach this point, it's probably better to part ways, as the working relationship is probably beyond repair.