Chapter 1 Representing Lgbt Clients

• Library: Estate Planning for Same-Sex Couples (ABA) (2015 Ed.)

Chapter 1 Representing LGBT Clients

Representing lesbian, gay, bisexual, and transgender (LGBT) clients continues to present challenges to their lawyers. Rather than resolving issues, the recent changes have created more complications for LGBT individuals, couples, and their families.

A. The Bandwagon

Since June 26, 2013, there has been a surge of interest from the mainstream legal community in LGBT legal issues. It appears representing LGBT clients is now acceptable. Unfortunately, many of the lawyers advertising to LGBT clients have limited knowledge, understanding, and appreciation of the myriad legal issues facing LGBT individuals and couples.

Many LGBT people do not know how to find a lawyer or how to identify one who will understand and be familiar with the unique legal issues they face. They often do not know what questions to ask and are, therefore, susceptible to suggestion.

Rita and Eleanor have been in a committed relationship for 15 years. In 2009, they sought legal advice from a local lawyer. They wanted to protect their relationship and their assets by executing the appropriate estate documents. This lawyer had no experience working with a same-sex couple. He advised them to form a limited liability company and place all their assets into that entity. He helped them create the LLC and transferred everything, including their personal residence, into the company. The couple did not discover how inappropriate that was until they tried to refinance their mortgage. The bank informed them they were ineligible for the low interest rates because the company owned the house. It took considerable time, effort, and expense to dissolve the corporation and transfer the assets back into their names. During that time, the interest rate increased, resulting in increased mortgage payments. All of this could have been avoided had the lawyer reached out to a lawyer with experience dealing with LGBT clients. Or, he could have bought this book. Instead, he did a disservice to his clients.

This situation is not unusual. Too many lawyers are jumping on the LGBT legal bandwagon. Most have never represented a LGBT client or expressed any interest in doing so. They are inclined to provide the same advice to a same-sex couple as they do to a heterosexual couple and are unfamiliar with the potential ramifications of their advice.

Some lawyers are engaging in a self-indulgent and ill-prepared effort to make a name for themselves. They fail to notice the work that has been and is being done by people with more experience and a better understanding of the issues. The lawyers' failure to consult with LGBT national organizations before embarking on litigation is inexcusable. Lambda Legal Defense and Education Fund (Lambda),¹ the American Civil Liberties Union (ACLU),² and the National Center for Lesbian Rights (NCLR)³ have the experience and the ability to assist lawyers who want to work with the LGBT community. This failure to consult often results in bad law that further damages the clients. The lawyers, however, are usually not adversely affected by the outcome.

LGBT clients, whether individuals, couples, or families, require experienced legal counsel to represent them. This is not an area designed for beginners.

Many experienced LGBT lawyers are finding it necessary to fix the problems created by lawyers who did not know what to do. Many of these lawyers meant well, but failed to understand this area of law requires more than a passing acquaintance.

Unfortunately, it is only a matter of time before the malpractice lawsuits begin. Perhaps it is time for lawyers to adopt the medical profession's promise: First, do no harm.

So, for lawyers thinking about jumping into the deep end—take a breath first and learn about the LGBT community and the issues it faces. Collaborate with more experienced LGBT lawyers, join the National Lesbian and Gay Bar Association,⁴ and attend the annual Lavender Law Conference, sponsored by the LGBT Bar. These are important steps because one size does not fit all.

That being said, there is a need for experienced lawyers to provide legal assistance to LGBT individuals, couples, and their families.

B. Branching Out into a LGBT Law Practice

Lawyers continue to see the value in marketing to the LGBT community. For some it will be a niche market; for others, it is the primary focus of their practice.

In 2004, when this book was first published, Massachusetts was the only state that recognized marriage equality for lesbians and gay men. When the second edition came out in 2012, that number had increased to six states and the District of Columbia.

On June 26, 2015, the United States Supreme Court issued its decision in Obergefell v. Hodges.⁵ In a 5-4 decision, the Court ruled that bans on marriage between same-sex couples are unconstitutional: "The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of State."⁶

Marriage is no longer restricted to one man and one woman in the United States. Lesbian and gay couples are free to marry throughout the country. There are issues that still require resolution, but the question of marriage equality has been definitively answered.

The Court reiterated its existing position that marriage is a fundamental right protected by the U.S. Constitution.

Marriage equality, however, will not be the determining factor for the LGBT community. The issues facing LGBT clients are often unique and not easily resolved. Any resolution requires creative thinking by the lawyers involved.

Lawyers who are considering adding this area to their practice must become familiar with the law of not only their home state but also adjoining states. They must become familiar with the differences between the rights granted under federal law and state law as they apply to lesbian and gay married couples as well as unmarried members of the LGBT community.

Estate-planning issues that concern LGBT clients may not be the same as those faced by heterosexual clients. It is necessary to listen to the clients and understand their concerns in order to prepare appropriate documents and advise the clients on how current law affects their relationship.

LGBT clients will ask questions involving their estate but also want to know what their rights are in myriad other areas. Lawyers practicing in this area must be able to answer those questions or know where to go for the answers.

Civil unions or domestic partnerships are not synonymous with marriage. The 2013 U.S. Supreme Court decision in United States v. Windsor⁷ dealt only with same-sex marriage and the federal Defense of Marriage Act. That decision does not apply to these types of legally recognized relationships. Clients who entered into those relationships may have state recognition but there are no federal rights attached to them. It is necessary to address that formal recognition when drafting a client's estate-planning documents. Further, some LGBT clients may have previous legally recognized relationships with someone other than their current partner. And, those relationships may not have been formally terminated.

Even with the rapid change in the marriage equality landscape, lawyers representing LGBT clients must remain alert because the law as it relates to LGBT rights will remain unsettled for some time to come.

C. Continued Market Growth

Married lesbian and gay couples are not the only clients seeking assistance. The LGBT community includes individuals, seniors, and transgender persons. They require legal assistance in a variety of areas. The lawyers who are familiar with their needs and are able to provide assistance will be in demand.

Preparing an estate plan for LGBT individuals and couples entails more than just drafting basic wills or trusts. Many LGBT individuals and couples are raising children, but not all of the parents are legally recognized. There are states that do not permit second-parent adoption or legal recognition of the nonbiological parent. These clients will require more sophisticated and comprehensive legal documents.

Life planning for LGBT clients also involves more than financial issues. Even with the growing number of marriage equality jurisdictions...