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Part of the Truth About Attorneys

Planned Giving Today

Originally Published in Planned Giving Today.

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Unpleasantness must occasionally intrude upon even the most peaceful of lives, and PGOs will likely find themselves interacting with attorneys from time to time. To help gird you for these encounters, this publication provides you herewith (as the attorney might say) a guide to some of the important differences between attorneys and the rest of humankind. Your author, who must confess at the outset that he is himself an attorney, can speak freely on this topic, having first of course diligently scanned the rules of professional conduct to satisfy himself that no serious professional harm can come to him for so doing. And as luck would have it, this last sentence illustrates the first and most obvious point to bear in mind:

1. Attorneys express themselves oddly.

Attorneys seldom descend into straightforward English if they can avoid it. This is particularly so in writing, where attorneys prefer a stilted, overblown rhetorical style which otherwise disappeared from general usage with the death of the poet John Milton. What may be clotted, opaque and ugly verbiage to you is a creation of rare and subtle beauty for an attorney. He wants it to read like that. This is why a PGO’s optimistic request for “just a simple CRT instrument,” or “just a quick opinion letter” perplexes and secretly offends an attorney. Please understand that our law schools hold up to the apprentice attorney the regrettable models of the opinions of Justice Oliver Wendall Holmes and the Treasury Regulations.

The Declaration of Independence is undoubtedly a great prose work, but you can tell an attorney wrote it. So there has come to be an “official way” to write a proper legal instrument, and judges, other attorneys, and perhaps most importantly, the IRS expect conformity to this standard. Certainly, this is changing, and many attorneys are sincerely striving for a simpler style. When confronted, an attorney may defend this style, with some justice, as necessary to cover all eventualities which may arise, and to pass muster with the courts and the Service. Then again, elevated legal style can make the quotidian seem profound. And a nice ancillary benefit for the attorney is that only he or she can interpret legal prose for you, and attorneys enjoy feeling needed.

2. Attorneys like to research issues fully.

PGOs who raise what they believe to be a simple legal question are often surprised and alarmed when an attorney responds, “I’ll take a look at that and get back to you,” particularly as past experience may well have shown that “taking a look at” something usually generates a large bill. What is the problem here? Shouldn’t an attorney know the answer? Didn’t the attorney learn the law back in law school?

No attorney alive can know the answer to all imaginable legal questions off the cuff; the law is simply too vast a body of knowledge and opinion for any single individual to master it all. A specialist in the law of planned giving or charitable organizations will obviously be considerably more likely to be able to field a PGO’s question than, say, a labor lawyer. Even so, a specialist may avoid responding with a straight answer until he or she has “researched” the issue.

Attorneys are trained to discover decisions or rulings which address a particular issue, and to extrapolate from these existing precedents the likely result as to the issue you have raised. This is a major component of what attorneys do. Although more senior attorneys often foist off research tasks to the novice associate attorney, many attorneys think research is fun–it provides them with some billable quiet time with their beloved books or computer monitors, and expands their knowledge in an agreeable way. Perhaps they will write an article on the interesting legal issue you have raised, after billing you for their time of course.

Therefore, some of the burden falls on you to make clear what you want the attorney to do. If you want a “quick and dirty” opinion, for which you do not expect to be billed, then you must let the attorney know. The advice you get may well be worth the nothing you paid for it, however. If you search your heart, what you may really want is a correct legal analysis upon which you can rely fully, but without having to pay for it, and this will usually strike the attorney as unreasonable. Remember that attorneys can be disbarred and sued for giving bad legal advice, and they must be cautious. As for concerns that attorneys may “research” an issue that they already know the answer to, my experience is that most (not all) attorneys are too busy fielding the other work on their desks to have the luxury of time to waste on needless research.

3. Attorneys have good and bad days.

Just as you must always check the freshness dates on milk and other produce at the market, so too you should remember that attorneys are fresher some days than others, and you should try to schedule your interactions with them accordingly. On Monday mornings, attorneys, already trying to cope with the shock of withdrawal from a blissful weekend, are most likely to hear from clients whose legal crises have deepened since Friday. Other challenging times for attorneys are warm Friday afternoons, and whatever weekday they happen to return from vacation. If your own legal crisis can hold that long, you may well be advised to call the attorney on a Tuesday or Wednesday afternoon instead.

4. Attorneys are slaves to the “billable hour.”

The rigor of the PGO’s workday, at least in the envious view of the busy attorney, may be mitigated by a languorous read through the daily newspaper, a two-hour luncheon with a prospective donor and a leisurely reshuffling of accumulated desk papers. The PGO’s performance is judged on long-term results, and properly so. In contrast, the attorney must do daily battle with that pitiless master, the time sheet. The attorney’s chief commodity is time, and whether he or she practices solo or in a large firm, the attorney’s compensation is usually related directly to the number of billable hours he or she manages to squeeze into a day, a week, a month. A somewhat modest goal of 1800 billable hours per year translates into a very hectic schedule of roughly 50 hours per week, excluding such nonbillable tasks as attending and giving seminars, reading daily update reports, networking, eating lunch, and assisting charitable clients and PGOs on a “pro bono” (no charge) basis.

This is why attorneys may be reluctant to join your planned giving board (or at least reluctant to attend its meetings on anything like a regular basis) and why they may seem brusque when you call to kick around a legal problem you have encountered. If the attorney is able to bill the time spent with you, you will likely find him or her more relaxed, and less prone to check the time regularly. At the same time, attorneys are encouraged or required by the various state and local bar associations to commit at least some hours to pro bono activities, and most enjoy doing so. Use your attorney, by all means, but bear in mind that the nonbillable time spent with you must be made up somehow, during evenings or weekends.

5. Attorneys can forget they don’t know everything.

Physicians, and especially surgeons, are sometimes observed to have “god complexes” engendered by the life-and-death importance of their work. Outside the criminal law context, no attorney’s work can have such crucial consequences for clients. This distinction does not, however, prevent at least some attorneys from developing, let us say, feelings of extremely high self worth. In part, this attitude, real or assumed, may assist in gaining the confidence of clients and the respect of judges. It is not an attitude calculated to endear the attorneys to those who must deal with them, however, including the PGO.

It is this attitude among attorneys which probably accounts for a good many lost planned gifts. The pattern is all-too-familiar: The PGO suggests, for example, a NIM-CRUT and a wealth replacement trust, and the attorney, reluctant to admit that he or she does not work much in the planned gifting arena, persuades the prospective donor that an irrevocable gift, particularly one to a charity, is not in the client’s best interest.

Forewarned of this proclivity, the wise PGO will strive to educate–but subtly–the attorney to the advantages of planned giving and other charitable estate planning techniques. Should the PGO have to do this? In a perfect world, no; but as things are, it is probably a good idea to try. Remember too, that, armed with the specialized information that the PGO can share, the attorney who yesterday killed a gift may bring one in tomorrow.

IRS Circular 230 Disclosure: To the extent this message contains tax advice, the U.S. Treasury Department requires me to inform you that any such advice, whether in the body of the message or in any attachment, is not intended or written by my firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Advice from my firm relating to tax matters may not be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer.

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