More Thoughts on Using Attorneys

October 12, 2015

My friend Robert Fleming is a Tucson elder law attorney. He writes too. His platform is the Legal Issues Newsletter, which he has been writing on a weekly basis for more than 22 years. (Truth be told, he’s only written 857 of the 880 articles.)

Last week and this week Robert wrote When You Need to Talk with a Lawyer and Handling Your Own Legal Work – Without a Lawyer, respectively. They’re fine pieces, and worth your time! I share them here to use them as a jumping off point for some additional thinking about attorneys, time, and fees.

Fees are certainly a major barrier to establishing an attorney-client relationship. Businesses budget for legal services, and wealthy people know estate planning and investment issues require an attorney who expects to be paid for services rendered. Middle class individuals? No so much. I recall, more than 25 years ago, serving on the State Bar of Arizona Long Range Planning Committee. A distinguished attorney commented on that fact that most of us—successful attorneys—could not pay someone else in the room to handle a significant matter. He was right then, and the situation is no better now.

There’s more going on than fees, however. I run across people with some frequency who want to do this or that themselves. They’re the people to whom Robert refers, who want to change their own oil or fix their plumbing. Maybe they like the challenge. Or the expected satisfaction which they need not share with their attorney. Or they think they’re smarter than anyone else.

Many years ago I had a client with a foreclosure action. He said he did not want to pay the title company for a litigation guarantee, which is a report that tells the foreclosing party who needs to be sued to complete the foreclosure properly. What was really going on? He thought the title process was interesting. I went along with the plan because … well, truly, I don’t know why. Five years later we were still cleaning things up.

Estate planning and probate attract do-it-yourselfers. They run the gamut from those who write their own wills and trusts, to those who try to navigate the court process. A recent, very simple probate—necessitated by a client’s failure to get an asset titled into his trust before he died—has generated 10 documents. (Honestly, I rely on a legal assistant to make sure we have all of the documents.) Regular people will screw this up! They will!!!

Litigation, on occasion, involves parties representing themselves. Sometimes it’s a defendant lacking funds to pay counsel and the amounts sought by and owed to the plaintiff. Other cases are about a real dispute. Again, as it is with probate, the process gets very complicated. Lots of deadlines and requirements, and the law requires unrepresented people to follow the rules.

Without doubt, people can accomplish many tasks on their own. For example, people routinely form limited liability companies on their own. I don’t discourage this approach, for with a simple LLC I cannot justify the fee I need to charge if I’m going to be responsible for the outcome.

On the other hand, take seemingly simple powers of attorney. Arizona has a state-specific form. Did you know that? Will the power spring or not? (A springing POA only takes effect when the giver is incapacitated.) Is the POA durable? (A durable POA stays usable when someone lacks capacity.) If you don’t know about these differences, thinking it’s “just a form” may be a very costly thought process.

The legal system is complicated. The same goes for auto mechanics and plumbing. Most of the attorneys I know are focused on cost, and every situation should involve a frank discussion about fees. No doubt, plenty can be DIY. In my opinion, though, cost should not be the reason for going forward on your own, and counsel can be very valuable in helping you understand what can and cannot be accomplished without an attorney.


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