Taxation & Estate Planning

Failure To Communicate: A Duty For Attorneys And Clients

By Joel A. Schoenmeyer

The duties that attorneys owe their clients are set forth in the Illinois Supreme Court Rules. They can be found here, and include things like:

the duty of competence;

the duty of confidentiality; and

the duty to avoid conflicts of interest.

What about duties that a client owes his attorney? I guess those vary by attorney. For instance, I won't put up with a verbally abusive client -- if you start swearing at me, and/or telling me I'm an idiot, I will fire you. But maybe that's just me.

If you look at disciplinary complaints against attorneys, you usually see that "failure to communicate" is at or near the top. That usually means an attorney who doesn't return calls in a timely manner (or doesn't return calls at all), an attorney who doesn't keep her client up to date on the status of their case.

But I think "failure to communicate" goes both ways. An attorney can't represent your interests if he doesn't know the whole story, and this is particularly true in estate planning and probate. And I'd say that this is a really important client "duty" that sometimes is ignored. Examples (from real cases):

Estate Planning. You hire me to do your estate planning, and we set up a living trust. You then ask me to prepare a deed, transferring your house into your living trust. You give me a copy of an old deed, showing you on title as sole owner. But you don't give me a copy of a newer deed, in which you gave 1/2 of your house to your son.

Probate. You hire me to open a probate estate for your mother. As part of the proceeding, we prepare an affidavit listing your mother's heirs (her children). But you fail to mention the three children your mother adopted one year before her death.

Probate Litigation. You hire me to file a claim against an estate. You claim that, for two years, you took care of an elderly woman who (you said) never got around to paying you. I file a claim on your behalf. During discovery - 6 months after you hired me - you disclose for the very first time that the elderly woman "made a gift" to your children of $150,000 right before she died.

These problems are probably bigger if you (like me) are a sole practitioner. Many of my clients view us as a less-expensive alternative to a big law firm (which I suppose we are -- not cheap, but cheaper). But that usually means we're spending less time on your matter, and relying on you to provide correct information to us. If that line of communication breaks down and we're working with bad information, that's a major problem.

Full post as published by Death and Taxes Blog on May 06, 2010 (boomark / email).