The Proper Role of the Military Legal Assistance Officer in the Rendition of Estate Planning Services

• Author: Mack Borgen
• Pages: 03

1. INTRODUCTION

   In the past several years numerous books, articles. government publications and military regulations have considered the estate and tax planning issues which commonly confront military members and their families. and have addressed the specific military or military-related emoluments which haveestateand tax

   *The opinions and eon~ludmnr pleaenfed IDthls arncle are those of the author and

   do not necessarily represent the views of The Judge Advocate Generah School or any other aovernmental agency-'Member of the California Bar A B , 1969. Unlverrty of Callforma at Berkeley. J.D , 1 9 2 Harvard Law School The author sened as a Captam m the Judge Ad: weate General's Corps, U.S. Army from August 1972 to June 1976 and taught

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   m estate planning and legal asratanee ai a member ofthe Admmlitrative and Cw~l

   Law Di\,lsion of The Judge Advocate General's School, US. Army fmm Julv 1973 to June 1976

   MILITARY LAN REVIEW [Val. 73

   planning significance.' Despite this considerable proliferanon of rnatenals. one subject of major importance has beenignored. That subject 1s the potential and proper role of the military Legal

   Assistance Officer in the rendition of estate planning services to members of the military community.

   It is the purpose of this article to evaluate the role of the Army Legal Assistance Officer (LAO)as an estate planning attorney.3Unquestionably, the types of legal services which may be provided pursuant to the Army Legal Assistance Program are far reaching. The scope of those legal services is limited only by certain express prohibitions in thegoverning regulation or other directives' and by

   the practical limitations and ethical constraints existent in any staff office legal assistance program. Although ethical respon. sibilities must be accepted and although some of the other factors periodically may temper or foreclose the possibility of rendering es. tate planning services, such factors do not eradicate the clients' needs and should not unnecessarily he interposed as reasons for refusing such services.

   It is the conclusion of this author that in many instances the military Legal Assistance Officerisnot adequately counseling and assisting clients in estate planning matters. This conclusion is bas. ed upon the considered analysis of the nature of military clients and their respective estates and upon evaluation, to the extent possible, of the reasons that attorneys either donot or are reluctant to render estate planning services. Even without extensive prior academic training or a developed expertise. without voluminous research materials, and without the freedom to represent clients in

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   competent estate planning services can and should be provided by the Legal Assistance Officer under the Army's Legal Assistance Program Of equal importance. hut not in any way 1"- iegulatian Arm, Re~ulanon

   608-60 places general respaniibilir? far the program unh The Judge Adiocate General and further dnecta

   their dependents &e entitled 10 legal ar&tance in connection uith ihar pereonallegal affairs under such replananr 8s may be prescribed bi the Secretary concern.ed' S 895 SlthCong .2dSess §2119i51 latrngfhar~ithollta~tst~io~yba~~~the kid asmrfsnce programr had become a pnmary tareef of budget cutters' 121W I G

   P J C S 2526 1S d a h ed 19751 fhispropaeedIpeislatiar.iedesgnedfaassure the cannnued and permanent rendman of legal ieri~cei to ser,lce rrembers and their dependents and ID ae~urethe confinuafionofrheExpandedLega1 Aseisiance Programfarthore reriicememberi anddependents uha cauldnotarheru,ireaffard court representation nithaur"undue hardship 'See text accom~8nvm~narer 32-5C

   MILITARY ESTATE PLANNING

   consistent with the first conclusion, the Legal Assistance Officer must perceive and accept the more limited responsibility of identifying those clients who should consult an estate planning specialist, and he should vigorousiy recommend that such individuals retain civilian counsel.

   A great majority of clients who are eligible for legal services urn

   der the military legal assistance program have only moderate sized estates. Most such clients have a similar asset structure and have similar and limited estate planning needs which do not require the legal services of an estate planning specialisr or team. Many of these clients do not perceive the need for. or are otherwise reluctant to obtain the advice of legal counsel regarding estate planning matters. Consequently, in the absence of objective and thorough legal counseling their estate planning matters are often dealt with in an inadequate and uncoordinated manner.

   Despite the clients' needs for certain types of estate planning services and despite the implicit authority to render such ~erwces under thelegal assistanceprogram, thereis areal, albeitsubtleand complex, problem of attorney reluctance. This reluctance may result in part from the regrettable overemphasis of tax con. siderations and complex estate planning techniques. This overemphasis persists both in legal training and in current legal commentary, although admittedly (and thankfully) there is an oc-casional respite.6 Such overemphasis causes or reinforces themis. perception that all estate planning is riddled with complexity which can be understood only by a specialist. It further implies either that estate planning is a luxury rather than a legal need or that estate planning is relevant only to wealthy individuals. Last. ly, this mistaken perception tragically closes the vicious circle by conditioning many attorneys to believe that they cannot render competent estate planning advice.

   The purpose of this article is to chip away at that circle by ex-hibiting that attorney reluctance 1s far more a problem of percep tion than a problem of competence. It should be noted that with

   EO

   regard to the military Legal Assistance Officer this 1s particularly true when the estate planning needs of one's client involve the cansideration and analysis of the many military or militaryrelated emoluments.

   Many middle-income clients do not request or are not aware of their need for estate planning guidance. It is the thesis of this arti. cle that through the legal assistance program. the military attorney has the opportunity, and arguably the affirmative responsibility in certain situations, to apprise the client of that need. to outline the available estate planning alternatives; and. as ap.propriate, to provide the necessarylegal serwcesarrecommend the retention of civilian estate planning counsel.

   11. THE ARMY LEGAL ASSISTANCE PROGRAM Although the governing Army regulation- and most literature concerning the subject imply the existence of only one legal assistance program, It isconceptuallymore accurate to distinguish between the "traditional" legal assistance program" and the "ex-panded" legal assistance program which is authorized by the regulation sublect to state approval or qualification 9

   1. THE "TRADITIONAL" PROGRAM

      The traditional legal assistanceprogram has beenin existencein one farm or another sincethepromulgation ofWar Department Circular No. 74 m 1943 l3 The initial program was the result of the cooperative efforts of the military and the American Bar Association (ABA) and was based upon a system of referral coordination between military commands and local bar association "corn. mittees an war work".

      1 Sponsorship and purpose

      1 General Superiirion

      The geneial oreanizathon, ~upervision and direction ai the plan has been assigned IO The Judge Advocate General uha -111 collahorar~

      AR 608 50

      . id prraa loi?l & (21 46 a id p ~ r s i

      40131 & 4d

      War Dep f Circular Bo 71 (Mar 16, 19131 vice and Asrirtance For hlihtari. Pereonnel

      in

      Circular was entitled Lewl .A0

      with the Committee on Wax Work of the Amencan Bar Assaciatlon. Smilariy, the staff judge advocates of the wmce commands wII collaborate with the committees onwarwarkof theseveralStatebar assocmtlonswulthm theirrespecriveseMcecommandsta aidin thees. tablishrnent and vniform operation of the plan."

      Prior to the establishment of this official program, there was no general plan or procedure through which military personnel could obtain the satisfactory resolution of their legal problems. The only avenue available was the individual employment of civilian at. torneys. Because many servicemen were unfamiliar with thereten. tion and u ~ e of attorneys and because the disruption of normal life brought about by the outbreak of the war produced a peat volume of legal problems for service personnel, the more formal and systematic legal assistance program as embodied in War Circular No. 74 was required:

      The rendition ofsuchlegal services, theexact scopeofwhich willhe discussed below, unquestionably has been of great assistance to members of the military comrnunity,'3 but it should be recognized that the provision of these legal services neither was then nor is now wholly gratuitous or charitable.

      The legal assistance program has always been founded upon a perception of military necessity:

      Id paisa I & 2

      '3 Beckwith. Legal Assistance to Milifory Peiaonnel, 29 A.B A J 382 (1943)

      [hereinafter cited as Beckwith]

      The fern "mditaiy community" LJ uaed because puismnt ta AR 608 io. para 6.legal services are tobepravidednot only tomilitar).members sndtherr dependents but also to retired personnel and their dependents. Department of Amy eiillian employees serving overseae lother than "locsI hue'' employees) and their accom-pawing dependents. allied personnel m the United States and their dependents. and post-discharge prmoner personnel confined m the Umted States Army Dm ciphnsry Barracks Alfhovgh not spec~fleslly authorized in the Regulation. ab B matter of long-standmg p~lic~le.alassiatanc~serv~ces are additionally provided to

      of active duty and retaed personnel

      Althowh the Rewiatm nedher makea a distinctm nor eatabhshes B pmnty among theae categories of eligible chants. m light of the bsax purpose of the program it IS recommended...