Consumer Alert: The Estate Plan, or No Estate Plan?
Just when I think the practice of law starts to re-gain some lost respectability someone finds a way to change all that. The latest entrant is courtesy of a company called “The Estate Plan” and the attorneys they involved in their “operation.”
I had never heard of the specific company “The Estate Plan,” although I have heard of various individuals and organizations with no or varying degrees of attorney involvement peddling Living Trust documents and other estate planning devices. I recently heard someone mention “The Estate Plan” company and the following case was brought up in that discussion: Cleveland Bar Assn. v. Sharp Estate Serv., Inc., 107 Ohio St.3d 219, 2005-Ohio-6267.
It is a case from the Supreme Court of Ohio by the Cleveland Bar Association against Sharp Estate Services and The Estate Plan among other defendants. The Bar Association claimed The Estate Plan engaged in unauthorized practice of law with the actions they used to sell Living Trust documents much the same way a person sells a financial product. You can read the details in the case yourself, but the critical flaw with the methodology used by The Estate Plan, as found by the Court, was the absence of independent licensed legal advice throughout the client representation process.
Designing and drafting estate planning documents is very much providing legal advice. It is providing advice to implement a client’s goals through the various legal devices available. It is being proactive to identify threats to a client’s estate plan and advising on how to minimize those threats. It is more than pushing a “magic button” and delivering one document that works for everyone everytime.
As a client, you seek to accomplish your goals through legally binding and effective documents. Would you ask your mechanic how to accomplish this and what makes sense for you? If you answered “no”, then I can’t imagine why you or anyone would consider the opinion of someone else without a law license.
To make things worse, the fees they were charging at the time (2002) were close to or above $2,000 for a Living Trust plan. Note, this was an estate plan from someone forbidden to practice law or give any legal advice. I admit I’m not familiar with the Ohio estate planning market, but in Connecticut you can still get quality estate planning work from an experienced attorney for not much more than what a company breaking the law was charging people.
Why did I bring this up and what does this have to do with attorneys? Well, The Estate Plan used attorneys as employees in an attempt to immunize themselves from unauthorized practice of law claims. The Court found these attorneys to be little more than data entry personnel and rubber stamp providers for their documents. The attorneys did not maintain their professional independence and that is where I am disappointed. As an attorney I work for you, the client. I have an obligation to you to provide independent appropriate advice. If an attorney lets external factors interfere with that obligation the very core of the attorney-client relationship is threatened.
I brought this story up to educate you, my reader. Even though I’m pointing out another black spot on the legal profession from some of its members, I want you to know what is going on out there. So the next time someone tries to sell you a Living Trust as the solution to all your problems, make sure the person telling you that is an attorney, and that they are an independent attorney working for you.
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Index Tags: estate planning, living trust
