Mark Rubin: Problem Solver / Lawyer / Fiduciary

I’m 65 – and a day (as I have finished editing, having forgotten about this piece) – and I’ve been a lawyer for just about 41 years. People ask me what I do, regularly. They’re often other lawyers or legal services consumers. Usually, they’re looking for a cubbyhole. (Employment lawyer. ERISA expert. Estate planner. Etc.) Almost always, I fail them, for I do too many things. (Many years ago I talked with a large Phoenix firm about employment. After a wasted day the very rude managing partner said “We’re not interested. You don’t fit in anywhere.”)

Problem Solver

Tired of failing people, 60+ years old, and having spent 62.93% of my life lawyering, I need to explain myself. In three words – and there will be many more – I solve problems. Am I always successful? No. Do I take on every problem? No. But, first and foremost, I solve problems. I’m not inexpensive, I’m pretty smart, and I usually get my client to a successful outcome. But I achieve successful outcomes because I stay focused on my role: problem solver. More on that in a bit.

Basics

I hold two licenses. I’m a lawyer, licensed to practice law in Arizona, in state and federal courts. I’m also a Licensed Fiduciary and have been for 17 years. With licensure as a fiduciary, courts can appoint me to serve for a fee as a Guardian or Conservator, or as a Personal Representative for a decedent’s estate. (I serve as a successor Trustee from time to time as well, because probate judges rely on licensure as a “skills” marker.)

I practice law with Rubin & Bernstein PLLC, and as a fiduciary with Southern Arizona Fiduciary Services LLC. I’ve done solo practice, 2X, and after my starter experience, law firms 2X. Now I am the senior partner in a three-person law firm. Best gig ever!

I also serve as General Counsel for Pima Medical Institute, an allied health educational institution, headquartered in Tucson and doing business in eight states on the ground and a few less than 50 over the Internet. I have represented Pima for almost 40 years. Seven years ago, to provide better service and disconnect the need for legal advice from incremental billing – the tenth of an hour tether – I went “in house” part-time. I handle many issues for Pima, but our arrangement leaves me lots of time for other people’s problems.

Practice Limitations

Leigh and I limit our problem-solving availabilities in two key ways: subject matter limitations and solution opportunities. On these subjects:

Subject Matter Limitations (Me)

First, I don’t touch certain subject matter areas. If you and your spouse / ex-spouse are fighting, I’m not there for you, no matter what you’re fighting about. I don’t do criminal or personal injury work, although I am available to make referrals. I avoid tax planning. And, in a variety of other areas, I’m not your guy. (I audited water law in law school, until we got to the difference between water, underground, which was and wasn’t flowing. Doesn’t it all come out of the faucet? Does anything else really matter?)

I have subject matter sweet spots. I have handled many real estate matters, including transactions, loans secured by real estate (and the foreclosures which arise when someone doesn’t pay), lot line and other title disputes, and general real estate litigation. Ditto for business transactions and disputes.

My fiduciary practice involves serving as a court-appointed conservator (handling assets for people in need of assistance.) Managing trusts, especially those with complicated assets. Family disputes, after mom or dad have died or suffer from dementia, fill up a part of my days. I stand out, here, when assets include a business or real estate, but I also get involved with less complex cases. I also do some estate planning, to try and avoid problems before they arise, and get involved with complex estate planning structures for wealthy people.

Because of my involvement with State Bar ethics and discipline activities for 15 years, I’m a go-to guy for lawyers with ethics or discipline issues. I also sue lawyers for malpractice (and defend them every once in a while), and provide expert testimony for and against them. I’m especially strong, here, when the malpractice claims relate to a real estate, business, or elder law issue.

Subject Matter Limitations (R&B)

About R&B*: most of our practice focuses on elder law matters. Say what?

• Estate and incapacity planning. (We believe people need to focus more on what happens if they develop dementia or otherwise lose capacity, than on what happens if they die. Further, everybody needs estate and incapacity planning: it’s not just for rich people.)
• Protective proceedings. Getting someone appointed to assist someone who becomes incompetent, needs assistance with their stuff, or both. These cases come down regular or on an emergency basis, and no one handles an emergency guardianship or conservatorship better than Leigh Bernstein.
• Probate aka Decedent’s Estates. Getting someone appointed to serve as Personal Representative and helping them administer an estate. (Probate, in Arizona, broadly includes decedent’s estates, protective proceedings, and trust administration matters.)
• Probate litigation. Fights, while people are still alive, which arise from protective proceedings or trusts. Fights about stuff after people die.

(Lots of overlap between the fiduciary elder law practices. Simply, as fiduciaries we represent ourselves and, when we represent others, we call those elder law cases.)

Solution Opportunities

We don’t take on matters if we don’t think we can achieve a worthwhile outcome. Say what? The case has to involve much, much more than our estimated fees, together with any fees my client might have to pay if we lose, we pass. Examples? The dispute involves $250,000, and the total fees won’t exceed $100,000: We’re listening. There’s $10,000 at issue. Sorry, but we can’t help you.

After 40+ years, candidly, I see too many cases which, quickly, are all about the fees. An unhappy individual shows up, with a checkbook and what might be a righteous cause. Then, the amount at issue involves five digits, while the fees will surely be > $100K. That. Won’t. Work.

Lots of lawyers tell me we’re obligated to help people, even if the numbers don’t pan out. They tell me principles matter, and that we should help people even when they might spend 20 to get 10. I understand the argument, but I think it’s wrong, plain and simple. In the end it’s always about the money, no matter how strongly I’m being told it’s about the principle.

Closing Thoughts

Hiring a lawyer requires care and attention. The client and the lawyer must have a comfort level, together. That comfort level must exist on at least two levels: perspective and objectives must be aligned, and there’s no room for antagonism. If you want to hire me to handle your $1,000,000 case – the one which might generate $75,000, on its best day – we’re a bad fit. And if you’re trying to retain me and we just don’t get along, the relationship won’t get better with time.

I make a living solving problems for people. If you’ve got a problem – even if it’s “I don’t have a will, I think I need one, and that thought has been with me for too long” – I’m available.

But Wait, There’s More

I need to share a few words about the two lawyers with whom I share my practice. Leigh Bernstein and Matthew Scarber limit their practices to elder law, and Leigh and I own SAFS together. Leigh shines as an elder law lawyer. Great judgment and problem solving skills. Matt? Speaking for myself and my partner, he’s the best young lawyer we’ve seen. (One of our competitors referred to their new associate as “our Matt Scarber.”)

We’re all available if you need help and you think we can solve your problem.

Be well. Apologies for the length of this piece.

Mark

 

*R&B. When we started our firm I wanted Bernstein Rubin. (Rubin Bernstein was a non-starter. Sounds like one male lawyer who can’t spell his first name.) A friend of mine solved the problem thusly: If you’re B&R, people will think of the ice cream store. If you’re R&B, people think hip music. Way cooler!

**Observant readers will note that the dogs in front of Matthew and Leigh – Ozzy Smith and June Carter, respectively – have passed. Time for a new picture, to include Daphne Moon and Clarence Martin.