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Wednesday, April 22, 2015

What to do about an estate lawyer who misbehaves

A reader of this blog recently suggested to me that he'd like to see an article about what to do when the lawyer for the estate has misbehaved. I took him up on the suggestion because I realize that plenty of people - executors and beneficiaries alike - have questions about the lawyer's role. Here is his comment and my response:

"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.




11 comments:

  1. Lynne. All excellent points and I am aware of all of them. This is also very helpful to those who are at the very beginning of the Estate learning curve. The 3 points apply to me. My lawyer is avoiding sending me his 'all included' legal fees billing. It will be high. He has asked me what I want to do. I have sent him a comprehensive letter and directives. He does not comply. He has done everything to get me to fire him. He has not applied to the Court to 'get off the record'. He has made it 'prejudicial'. My case has gotten rather complicated thanks to a disgruntled beneficiary. I am dealing with a lawyer who was recommended to me. He is dishonest and lacks integrity. He has been practicing for 45 years. I will see how this plays out. Trial set for Aug 4. I have spent too much money to fire him at this point. I am waiting for a Pre trial to get the other sides accounting. It's complicated. Perhaps this could make for an interesting part of a book?
    Lynne thanks for an excellent Website and your quick response. If interested I will let you know how things turn out.
    As an aside I have a chronic back disability and sitting for me is a major problem, therefore I do not drive. The stress has been very high. If I told you the whole story you would find it hard to believe.
    You can use ..edit my post if you wish.

    ReplyDelete
    Replies
    1. I appreciate your comment, though it's always upsetting to hear about a lawyer (or anyone we pay hard-earned money to, for that matter) who isn't doing their job. I don't think the lawyer himself can make it "prejudicial" for him to get off the record. The term basically means that it would harm you in some way, either financially or in terms of rights or time delay, to change lawyers.

      I'm always interested in knowing how things turn out. I feel badly for anyone who is involved in dragged-out estate litigation, so I hope it goes well.

      Lynne

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  2. Lynne,

    What does a lawyer have to do to 'get off the record'?
    Thank you

    ReplyDelete
    Replies
    1. Being on the record means that a lawyer has filed documents with the court such as a Petition, or Notice of Motion, or something indicating that he or she is the lawyer representing the client in that particular matter. So "the record" in question is the court record.

      Getting off the record depends on the facts, but generally speaking, if it's the lawyer who wants to end the working relationship, he or she has to ask the judge for permission to end it. The judge has the power to insist that the lawyer stay on the record. This might be done, say, if the lawyer makes a request to get off the record right before an important hearing. The judge might insist that the lawyer deal with the hearing first before getting off the record so that the client isn't left without a lawyer just at the time he needs one the most.

      It's also possible for the client to make a motion to get the lawyer off the record, either because the client wants to bring in a new lawyer, or because the client wants to represent himself.

      If there is no court record because there is no litigation, the lawyer and the client can just fire each other.

      Lynne

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  3. In my case, the lawyer won! I am a residuary beneficiary who requested information from the executor and lawyer time and again. The executor said to only communicate with the lawyer; however, the lawyer refused to provide information and stated I could spend ALOT of money taking this matter to court, or pay from my share of the estate his hourly fee + tax for his inquiry into my questions and requests for information. He wouldn't budge and said he would take the risk of my taking this matter to court. He also said I would spend my inheritance in legal fees. I guess he gave me good advice because he was right. I contacted a lawyer and she said the same.

    ReplyDelete
  4. My question is this: Is there a legal book that states laws about the rights of a beneficiary or what they are entitled to legally?

    ReplyDelete
    Replies
    1. The only one I know of offhand is the one I wrote. It's called The Beneficiary's Answer Book and you can get a copy at http://www.lulu.com/spotlight/lynnebutler

      Lynne

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  5. My continuing saga...
    I prepared an excellent presentation but the Judge totally dismissed it. Judge did not challenge either one of us. I had asked my lawyer for his 'all included bill so that I could use it in court but he did not provide it because it will be huge. I have to find representation and that is proving difficult. The old boys network at work. Due to a genuine disability I cannot continue. Lynne, what can I do to remove myself as Executor??

    ReplyDelete
  6. Hi Lynne,
    I have a lawyer who was acting on my behalf for my late husbands estate. I had to let him go because he was billing me some pretty ridiculous amounts and not getting much done (seriously it was bad). I decided to formally let him go. He has already paid himself from the Trust Funds and one of the reasons I decided to go to taxation.

    However, now that I fired him, he sent me a 'without prejudice' letter stating that he feels that there is a 'competing claims' against the beneficiaries (I had merely asked one beneficiaries if what they had taken from the house should be deducted from their amount). He stated that UNLESS I sign a release for his firm AND cancel my Taxation of his billing, he was going to 'PAY FUNDS INTO COURT'!! I merely want to save money by Administrating the account myself (along with a new lawyer who will provide advice when needed). I've done everything right that I can think of, but it appears that this lawyer is holding BOTH my file and TRUST FUNDS ransom! Can he do this? Any advice is most Welcomed!

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    Replies
    1. You didn't say directly whether you are the executor of your husband's estate, but it appears that you are, so I'm proceeding on that assumption. If you are the executor, you have the right to hold and administer the estate funds. If there are competing claims among beneficiaries, that is actually your responsibility as executor to sort out, not his. However, you said he told you there are competing claims against the beneficiaries, not between the beneficiaries, so I don't know what he means by that. It could be creditors, but then again, it's your job as executor to sort out creditors before you pay the beneficiaries, not his job.

      Paying funds into court is something that is done when someone is holding money that they know they have to release, but there is some question about to whom it legally should be paid. As I said, if you're the executor, there really is no question about to whom it should be paid. If you're not the executor, then I see his point.

      Once funds are paid into court, the various parties who wish to claim the money go in front of the judge to work out who gets it.

      I think it is out of line for him to say he'll pay the funds into court if you don't cancel the taxation. They are unrelated issues. He is strong-arming you, and this might be a case in which you telephone the law society of his province to discuss his behaviour with them.

      If he has been paid in full, he has no right to hold your file.

      Lynne

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