Views from a former member of a grievance committee: hot buttons for the estate planning, probate, and trust attorney.

• Author: Griffin, Linda S.
• Position: Florida

I have had the great opportunity to serve on three grievance committees for a total of nine years. I would like to say my participation on the committee has been purely altruistic, but experience has taught me I am not often "purely altruistic." When I opened my own practice in 1990, I realized that I needed to understand how The Florida Bar ethics rules (1) affected my practice. I have had the good fortune to interact with attorneys in many different areas of practice and public members (2) from all walks of life. I have had the opportunity to review situations where I think to myself in indignation, "I can't believe he or she did that," and those that made me think, "I have to go back and check my files to be sure I did not do that," and everything in between. I have had the privilege to act as a chair of a committee and to preside over evidentiary hearings.

This article is written to share my thoughts and experiences as to certain hot buttons applicable to estate planning, probate, and trust attorneys and to make suggestions on how to avoid having a complaint filed against you. Although certain committee proceedings are public record, I have omitted names and exact circumstances because of confidentiality of the proceedings. (3) The following are the opinions of the author, and do not represent the opinion of The Florida Bar, The Florida Bar Journal, or of the committee.

Estate Planning

In my experience, clients do not generally file complaints in the drafting of the estate planning documents; instead, most complaints generally arise after the death of the client. Nevertheless, complaints in the estate planning area primarily involve communication, (4) competence, (5) fees, (6) and conflict of interest. (7)

* Communication. Committee members (remember, at least one-third of the members are nonlawyers) are generally amazed when attorneys do not return phone calls. This complaint is easily avoided by having in place an office policy that every phone call must be returned within 24 hours. Documentation of your return phone calls also provides committee members with objective evidence that you or your staff actually called the complainant, particularly if the complainant states he or she has not heard from you in weeks or months. Clients can get angry at the attorney because they do not get the response they want, and may retaliate by filing a complaint alleging that you have not returned their calls when they are calling you 10 times a day. Documentation refutes those false complaints. If you are unavailable to return calls, train your assistant to return them. Some clients prefer e-mails to phone calls. When you respond to a client via e-mail, print and file the e-mail, or save it to a file on the computer. Some software programs, such as Amicus, automatically assign e-mails and telephone calls to the appropriate file. Some practitioners avoid the use of e-mails because e-mails are discoverable, and language in an e-mail is sometimes not as carefully thought out as in written correspondence.

* Competence. Clients complain when an attorney has advised the client that he or she can provide certain estate planning techniques that the attorney is not qualified to handle. Instead of turning down a potential client and referring him or her to a qualified attorney, the attorney signs a fee agreement with the client. The comment to the applicable rule (8) provides that an attorney can perform legal work for which the attorney does not have experience, but the attorney must research and become qualified to handle such a matter. If the attorney realizes that he or she cannot adequately handle a matter that was unwisely taken on, he or she may react by avoiding the client (see Communication, above) because the client's initial payment has already been spent (which is another issue). Unfortunately, the attorney's inexperience or incompetence is often not discovered until after the death of the client. If an attorney determines that the attorney lacks the expertise or experience to handle a matter, the attorney should either advise the client and refund the client's advance payment, or consult with a more experienced attorney and be willing to pay the experienced attorney for his or her time.

* Excessive Fees. Estate planners sometimes charge fixed fees for estate planning work, and the client may agree and willingly sign a fee agreement. A fee agreement by itself does not prevent a client from filing a grievance against an attorney for excessive fees. Committee members will review the fee agreement but if, for example, an attorney determines that a client needs a simple will and the attorney charges and collects an excessive fee, the committee members will not look favorably upon the fee agreement unless there is a valid explanation. The attorney's assertion that "the client signed the fee agreement and therefore the fee is not excessive," is not dispositive of the issue. If, however, the simple will is not "simple" and involves complex provisions, those factors will influence the outcome. Generally, committee members request time records even if a fixed fee agreement is signed. Committee members, especially non-attorney members...