Sowing the Seeds of Law
Posted: May 26, 2010 Filed under: Law, Practice, Probate | Tags: administration, ethics, law practice, Probate, procedure, property, real estate, representation Leave a comment »Preface: Probate attorneys fees are set by statute. A lawyer’s fees in probate are not necessarily increased or decreased by more involvement with the realtor selection process.
Under ethical rules promulgated by California, lawyers must refrain from making contact with a person represented by a lawyer. The lawyer may only communicate with that person’s legal representative. This is to ensure that one lawyer does not undermine the relationship between attorney and client and to also keep the dialogue between lawyers, as opposed to splintered discussions between lawyers, parties, and lawyers with the parties themselves. However, this ethical rule is, as far as I know, unique to the legal profession. Accountants may speak to anyone else, even if that person has an accountant. Doctors may speak to any else, even if that person is the patient of another doctor.
It may seem ridiculous to limit accountant or doctor communications, but there are a few circumstances where I think people would benefit from limited communication from certain professionals. One of those circumstances is within the probate realm. As an estate goes through probate, the assets are inventoried and oftentimes sold so that the assets can become liquid to distribute to beneficiaries (e.g., a house is sold so that it can be “split” between multiple beneficiaries who do not want to live in and maintain the house). In this situation where the estate’s real property is sold, a realtor is often used to market and sell the property. The broker is hired by the estate’s personal representative (the executor or administrator).
While the personal representative of the estate is often represented by an attorney, there are no limits as to whom a realtor may contact like there are for lawyers. Therefore, a realtor can keep an eye out for the public notices denoting recent probate filings (all public records) and then cold-call each and every representative of each new probate filing. It’s something akin to ambulance chasing, except it’s more like hearse chasing! As you can imagine, the realtor has a financial interest in getting the listing–the commission. The realtor will also try to steer the client toward early marketing and to forgo any court confirmation of the sale in order to get his commission quicker and easier. Sometimes this meddling by the realtor undermines the attorney’s representation of the personal representative. Once that probate is filed and the notice is posted, the personal representative of the estate is literally bombarded by realtor phone calls, flyers, mailers, personal visits, etc. It gets overwhelming. The personal representative often feels pressure to sign the listing before he/she has authority to act on behalf of the estate. It’s ugly.
If there is a place other than the legal industry where there should be limited communication with represented individuals, this is surely one of them. With the stress of going through the funeral process, sifting through a dead person’s records and property, and answering to heirs who want their distribution of the estate, the representative must also deal with greedy realtors looking to score a listing. When trying to counsel the client to be very careful in choosing the realtor, the realtor oftentimes convinces the personal representative that the lawyer is merely dragging his/her feet. It can be an ugly push-pull. If realtors were required to communicate with the estate representative through his/her attorney, then this predatory behavior would at least be hindered. In this case, more lawyer involvement is beneficial.
From “My Sharona” to In Propia Persona
Posted: April 20, 2010 Filed under: Family, Law | Tags: custody, in pro per, justice, representation, self-represented, support, visitation Leave a comment »“Oh my little pretty one, pretty one
When you gonna give me some time Sharona
When you make my motor run, my motor run
Gun it coming, off the line Sharona”
–”My Sharona” by The Knack
Spring is upon us and love is in the air. Well, until all the love crumbles down and all that you are left with is resent, bitterness, and contempt. What did you expect? This is a family law blog. In California, your odds are better than a coin flip that your “My Sharona”-eque pining for the object of your affection will eventually result in a divorce. Surprisingly, that’s not even the depressing fact. What’s worse, out of the over 200,000 divorce petitions filed annually, 70% of those cases involve at least one self-represented party (i.e., somebody without a lawyer). (source) Since California law has to come up with a fancy Latin phrase for everything, we call “not having a lawyer” as in propia persona, or for short, in pro per.
There are, of course, reasons that contribute to such a high percentage of parties in family law cases that proceed in pro per. I won’t get into the contributing factors here since there are sites that have done an adequate job explaining the phenomenon. I’m not a fan of reinventing the wheel. Instead, how can we resolve this disparity between represented and non-represented parties in family law cases without requiring additional resources from the County or the local bar? Here’s my take on it.
All over the web are blog posts by and about disgruntled, bitter law graduates who can’t find jobs. Some blame it on the recent economic downturn. Others blame it on the legal education institution that is fast becoming a lawyer mill that provides its graduates no real training upon graduation. (I will not link to the various posts because I do not think such discourse is very useful or worthwhile, but you will have no trouble finding them through a web search). Assuming someone went to law school to, say, practice law (I know, this assumption sounds obvious, but after you read the aforementioned blog posts you’ll quickly realize that a lot of peoples’ motivations to go to law school rarely relate to practicing law), then getting real world “reps” will provide a truly valuable benefit to his/her law career. Such clinical experience is substantially lacking in today’s legal education/training. So, if we have a population of people who cannot obtain legal representation for one reason or another, and we have another population of un- or under-employed attorneys, then why can’t we kill two birds here? The resources required would be nominal. Someone would need to provide some sort of initial training seminar to the new attorneys and then experienced lawyers would need to act as “mentor” attorneys with which the new grads may consult. As a safeguard (for all of you people crying malpractice), the parties who could not previously obtain counsel would also sign some sort of informed consent to be represented by the new grads.
I may have made light of divorce at the beginning of this post, but in all seriousness many family law cases involve very grave custody and support issues. Parties who proceed in pro per risk prejudicing not only their own case and rights, but it also affects their children. Having relatively inexperienced counsel surely cannot be worse than having no counsel at all.
Are You In… Or Do You Want Out?
Posted: February 21, 2010 Filed under: Landlord-Tenant, Law | Tags: goals, Landlord-Tenant, representation, strategy Leave a comment »Oftentimes, in a landlord-tenant case, the most important question a lawyer can ask his or her tenant client is for the client to state in simple terms the client’s overarching goal. Within the context of Landlord-Tenant disputes, that question posed to tenant clients is often, “Do you want to remain living in your current living situation or would you like to be released from your obligations, if any?” It sounds simple enough. However, commonly the tenant gets so deeply involved in his or her dispute with the landlord that the forest gets lost for the trees.
Let’s face it, tenants enter any landlord-tenant dispute with considerably less leverage than the landlord in terms of bargaining chips. The subject of the dispute is the tenant’s living quarters, not the landlord’s. Should the tenant become evicted, the tenant lost her house while the landlord simply needs to fill a vacant rental unit. Unless the tenant lives in one of the “rent control” jurisdictions around the state (e.g., San Francisco, Oakland, Santa Monica, etc.) the tenant does not have many tools in her toolbox in order to compel any sympathy (i.e., action) from the landlord. Thus, it is imperative at the outset of any conflict to determine if the current housing arrangement is even something the tenant considers to continue.
If the tenant wants to stay in her current position (e.g., her building is close to work, this conflict has a low likelihood of repeating, the lease term is about to expire, etc.) then all strategy should be focused toward somehow settling with the landlord with the least amount of collateral damage (i.e., no litigation). If the tenant wants out of there by any and all means, then the lawyer should strap on his or her helmet and prepare for battle in order to secure the tenant’s release from any obligation she or he may have to the landlord.
Again, this may seem elementary, but a good discussion with the tenant client at the outset of representation allows the lawyer and client to be on the same page with respect to strategy and approach, not to mention costs.
