Tuesday, April 16, 2019
Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff recently edited a book entitled, The Oxford Handbook of Fiduciary Law, (1st ed. 2019). Provided below is a summary of the book.
- Examines how fiduciary principles apply in eighteen different fields of law, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law
- Provides clear guidance on essential concepts and principles of fiduciary law, including the defining characteristics of fiduciary relationships, the duty of loyalty, the duty of care, mandatory and default rules, and fiduciary remedies
- Offers new historical, comparative, and interdisciplinary perspectives on fiduciary law
- Includes original essays from leading fiduciary law scholars exploring perennial challenges and future directions for the field
- No book currently available provides an overview of fiduciary law that is as rich or comprehensive as this volume
For more information about the material within the book, see here.
Special thanks to Garrett A. Heckman (Palm Springs, California Attorney) for bringing this article to my attention.
Wednesday, April 3, 2019
A Tampa, Florida attorney that once specialized in wills, trusts, and estate planning has been sentenced to 15-years by Hillsborough Circuit Judge Christopher Nash. David Land Whigham, who regularly represented charities and disabled litigants, pled guilty in November of 2017 to embezzling more than $2 million from his clients.
In 2016, the Florida Bar discovered he’d overstepped his bounds when the Bank of Tampa flagged strange activity in his trust accounts. The bar filed a petition for disciplinary revocation, citing that before his death in 2011, a client had requested that Whigham distribute more than $900,000 to the Shriner’s Hospital for Children and a schizophrenia research foundation in Massachusetts, but Whigham failed to do so.
The Florida Department of Law Enforcement found at least nine victims had lost money to Whigham, who spent the stolen cash on his mortgage, vacations, and other personal expenses and luxuries. He told the court that he could not explain his decision to embezzle the funds, but also added “I promise the court I’ll dedicate the rest of my life to making restitution.”
See Raychel Lean, Floria Lawyer Gets 15 Years in Prison for Swiping $2 Million From Disabled Clients, Daily Business Review, April 2, 2019.
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Friday, March 29, 2019
Jodie Distler recently published an Article entitled, Re-Considering Undue Influence in the Digital Age, ACTEC Law Journal, Vol. 44, No. 1, 131-137, (Winter 2019). Provided below is an introduction of the Article.
In a thought-provoking article (the "Article") sitting in the intersection of legal scholarship and psychological study, Dominic J. Campisi, Evan D. Winet, and Jake Calvert explored the understating of a person's susceptibility to undue influence and methods by which an influencer and intentionally or unintentionally exploit common human behavior to the influencer's own benefit. Campisi, Winet, and Calvert apply the six basic categories of persuasion tactics from Robert Cialdini's, Influence: The Psychology of Persuasion to the decision-making processes involved in lifetime and testamentary assets transfers. They caution that "in evaluating the susceptibility of people to undue influence and elder abuse tactics, it is important to focus on the actual cognitive processes by which most people make decisions. The author agrees with this advice and further argues that the emerging laws authorizing electronic estate planning documents, remote notarizations, and e-signature processes could increase the opportunity for undue influence by allowing influencers, in the absence of attorney involvement in the estate planning process, to leverage those principles of persuasion.
Tuesday, March 26, 2019
Stephen R. Galoob and Ethan J. Leib recently published an Article entitled, Fiduciary Loyalty, Inside and Out, 92 S. Cal. L. Rev. 69-126 (2018). Provided below is an introduction of the Article.
A fiduciary is someone with a certain form of discretion, power, or authority over the legal and practical interests of a beneficiary. As a result of this arrangement, the beneficiary is vulnerable to predation by the fiduciary. Fiduciary relationships trigger a suite of duties, at the core of which is the duty of loyalty. In a sense, the fiduciary relationship is oriented around the possibilities of trust and betrayal. One point of fiduciary duties is to prevent betrayal or, failing that, to assure that betrayals are rectified insofar as possible. What constitutes loyalty or betrayal in fiduciary law, however, is not always clear.
Consider Item Software (UK) Ltd. v. Fassihi. Messrs Fassihi and Dehghani were corporate directors of a small software distribution company called Item Software, whose main business was selling software developed by Isograph. Dehghani was the managing director, and Fassihi was the sales marketing director. In November 1998, Dehghani decided to renegotiate the terms on which Item sold Isograph’s products. Fassihi urged Dehghani to drive a hard bargain with Isograph, so Deghani negotiated aggressively. Ultimately, the negotiations between Item and Isograph broke down, and Isograph terminated its contract with Item.
Fassihi’s advice to Dehghani, although plausibly in Item’s best interest, had the air of duplicity. Unbeknownst to Dehghani, during the negotiations Fassihi had approached Isograph with a proposal to establish an independent company to market Isograph’s products. At the same time Fassihi counseled Dehghani to engage in brinksmanship, he also urged Isograph to terminate its relationship with Item. In a subsequent lawsuit, Item alleged that Fassihi only urged Dehghani to negotiate aggressively in order to increase the prospects of undermining the negotiations and subsequently obtaining Isograph’s business for himself.
Was Fassihi disloyal? The answer, of course, depends on what loyalty means. It seems clear that Fassihi was disloyal to his partner in the ordinary sense of that term. Fassihi’s conduct bears a striking resemblance to that of Iago in Shakespeare’s Othello and of Littlefinger in George R.R. Martin’s A Song of Ice and Fire novels, arguably the preeminent historical and contemporary literary examples of treachery. Yet as a legal matter, whether Fassihi violated his fiduciary duty of loyalty is not as obvious. This discrepancy might be explained on the grounds that the notion of loyalty applicable in life (let alone Elizabethan tragedy and genre fiction) differs from the standard that leads to legal liability against fiduciaries like corporate directors, trustees, and attorneys.
Cases like Fassihi implicate a lively scholarly debate concerning how the legal notion of loyalty relates to the notion applicable outside the law. Although the terms of this debate are not always clear, some see a deep connection between the legal and non-legal notions of loyalty. Call this position “moralism.” For the moralist, this connection to the moral or ordinary notion of loyalty informs the legal requirements that apply to fiduciaries, as well as the determination of whether a fiduciary has violated duties to a beneficiary in any particular case. By contrast, a position we can call “amoralism” denies that there is any meaningful connection between the loyalty that applies to fiduciaries and its moral counterpart. To be sure, the amoralist does not (and cannot) deny that judges sometimes invoke moralized language to describe fiduciary concepts. However, for the amoralist, any such connection is rhetorical flourish rather than real law. We more fully describe the parameters of the debate between moralists and amoralists in Part I.
The debate between moralists and amoralists is a species of a much broader dispute about the comparative importance of legal materials and broader normative principles in theorizing the private law. Consider the connections between the morality of promise and the law of contract, or the role the concepts of “wrong” and “duty” play in tort law. Much private law litigation and scholarship concerns whether legal concepts resemble and operationalize concepts from ordinary morality. Within fiduciary law, this debate about loyalty has particularly important practical implications, since it bears on how to elaborate standards in areas where fiduciary norms already apply and on whether fiduciary norms should apply to a particular legal domain in the first place.
The debate between moralists and amoralists is long running and perhaps intractable. We propose to finesse, if not resolve, this impasse by focusing on what we term the cognitive dimension of fiduciary loyalty. On this view, whether someone satisfies the requirements of fiduciary loyalty depends, at least in part, on how she deliberates and how her deliberation is connected with her actions. Fiduciary loyalty also imposes demands on a person’s commitments: a fiduciary does not satisfy her duty of loyalty toward a person or cause if her commitments to that person or cause prove themselves too flimsy. These standards apply to loyalty both inside and outside of law. For the most part, they apply irrespective of whether the best understanding of fiduciary loyalty is moralist or amoralist. We elaborate and defend these claims in Part II, drawing on doctrines in corporate law, trust law, agency law, bankruptcy law, and the law governing lawyers that are, we argue, best explained by the cognitive dimension of fiduciary loyalty.
Part III then clarifies our conclusions regarding cognitivism and fiduciary loyalty, highlighting some of the implications of our analysis for fiduciary law. Cognitivist accounts can catalyze both doctrinal and policy innovations. Regardless of whether loyalty has an identical meaning inside and outside of legal institutions, fiduciary loyalty, like ordinary loyalty, imposes important standards on a fiduciary’s cognition. Appreciating this structural feature of loyalty will enable judges and scholars to transcend many debates about moralism and to resolve practical questions that do not turn on whether moralism is true.
March 26, 2019 in Articles, Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Income Tax, New Cases, Professional Responsibility, Television, Trusts | Permalink | Comments (0)
Tuesday, February 26, 2019
R. Kevin Spencer recently published an Article entitled, Good Estate Planning Process: A Panacea for Litigation, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 137-150 (2018). Provided below is the introduction to the Article.
Every estate litigator must contend with an estate planner, but not every estate planner must contend with an estate litigator. Most doctors, if they practice long enough, assume that will sued at some point, i.e., their work product will be questioned or challenged. While estate planner cannot be sued by a beneficiary in Texas for their estate planning work due to lack of privity, most estate planners believe their work product will someday be contested; but it does not have to happen. The job of an estate litigator is to search for evidence proving the invalidity of a Will, based upon lack of testamentary capacity and undue influence. A failure of formalities and solemnities or "forgery or other fraud" are additional grounds for invalidity. Unlike fire inspectors, who must search for the origin pf a fire. estate litigators know a Will originates with the scrivener. This article reveals some of the secrets of estate litigators and suggests the diligence needed for estate planners to avoid them, such as the importance of documenting their work, and preparing to defend their work product. The quality of the process determines the quality of the product; a Will contest necessarily includes attacking the process. Much to the chagrin of estate litigators, this article arms estate planners with information and knowledge to avoid the attack. Some of the information may seem elementary to good estate planners, but, unfortunately, these errors occur time and time again. The development of a quality estate planning process will improve the product for the client and help to avoid scrutiny of the estate planner's work product in a Will contest.
Friday, February 22, 2019
Thaddeus Mason Pope recently published an Article entitled, Whether, When, and How to Honor Advance VSED Requests for End-Stage Dementia Patients, Elder Law eJournal (2019). Provided below is an abstract of the Article.
The Director of Nursing at the Pleasant Valley Nursing Home has requested an ethics consultation for guidance on whether the staff should follow the directions of a resident’s health care agent. Rhea, the agent, has asked the staff to stop spoon feeding Gertrude. Gertrude has end-stage dementia. Rhea explains that Gertrude did not want any orally or artificially ingested food or fluids under those circumstances. She wanted to voluntarily stop eating and drinking (VSED).
The ethics consultant should ask (and answer) at least six questions:
1. Is the advance directive valid?
2. Who is the decision maker?
3. Has Gertrude, in fact, requested forgoing spoon feeding?
4. Does Rhea have authority to direct forgoing spoon feeding?
5. Is Rhea complying with applicable decision-making standards?
6. Does Gertrude’s opening and swallowing trump contrary instructions?
Thursday, February 14, 2019
Article on Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology
Alexandra M. Jones recently published a Comment entitled, Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 161 (2018). Provided below is an abstract of the Comment.
Fresh out of law school, many young lawyers are eager to start their legal careers and just right into the courtroom. While they still need some practical training first, many young lawyers accept jobs that deal solely with discovery or intake until they can slowly make their way up the legal food chain. With the advancement of technology, programs like expert systems and artificial technology are taking over some of these first-year associate jobs because they are less expensive and more efficient. As a result, law firms are not hiring as many recent graduates. Eventually, technical jobs could replace the classical notion of attorneys. However, the growing concern that technology is taking over jobs in the legal field is not the only problem caused by artificial intelligence. Issues arise with how much impact technology has in transactional fields, such as estate planning, and the future role that artificial intelligence will play. An even greater issue arises with who is liable for artificial intelligence mistakes when there is very little in terms of legislation.
Tech industry experts are in stark disagreement about the means of regulating artificial intelligence. Stephen Hawking and Elon Musk have warned the world of dangers of advancing artificial intelligence and that governments need to start creating laws and regulations. Experts such as Bill Gates and Mark Zuckerberg believe that creating new regulation is not realistic because the technology has not fully developed. Some critics argue that researchers are already regulated enough, and adding more regulation will stifle innovation. This comment focuses the issue on a much smaller scale by suggesting that lawyers, law firms, and other entities that utilize artificial intelligence, or its branch of expert systems, in their estate planning practice are consistent with ethical rules of conduct for the system. Additionally, this comment will expand upon the meaning of the unauthorized practice of law as it relates to artificial intelligence.
This comment proceeds in five parts. Part I introduces the concept of artificial intelligence through practical and theoretical examples and definitions. Part II discusses the impact that artificial intelligence has on expansion. Part III considers the effect artificial intelligence have on estate planning laws. Part IV discusses the parties liable for artificial intelligence. Part V suggests methods of ensuring compliance with ethical standards to estate planning practitioners as technology becomes more absorbed in transactional fields.
Thursday, February 7, 2019
The traditional family model (heterosexual, married, and with children) is much less prevalent in our changing society, yet the field of estate planning is slow to catch up. With more and more blended families, multiple marriages, and even artificial reproduction, estate planners and advisors need to raise new questions with their clients and offer new solutions.
The five basic questions to ask when forming a estate plan are to whom, how much, when, outright or in a trust, who will step into your shoes as agent and fiduciary. These questions are important for both traditional and contemporary families, but the latter will bring along more complex questions that will need not-so-simple answers.
Traditionally, financial wealth has descended by blood line. Non-marital partners, gestational agreements, and other form of artificial reproduction have caused several people to redefine blood lines as well as trusts that provide for those family members. If there are multiple marriages and large age gaps between children, a parent or grandparent may want to leave more to the younger of the generation as they may still be juveniles when the trustor passes away. But do not assume that you can leave less to children from a prior marriage as you believe your ex-spouse will also leave me an inheritance. This may not always be the case, so communicating your intent should ease any confusion.
See Ashlea Ebeling, How Long Will Stepmom Live? And Other Vexing Estate Planning Questions For Modern Families, Forbes, January 29, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Lightning-paced advancements in technology are responsible for many wonderful accomplishments that span across most industries and have contributed to making day-to-day life and work easier and more streamlined. Despite such modern-day developments, technology can still cause major problems, and unexpected issues can occur in ways that were unfathomable less than 20 years ago. The breadth of general knowledge, regardless of specialty, that attorneys must possess to represent their clients is constantly expanding. One key area is how cybersecurity affects their practice and their client's information. Attorneys need to be prepared for phone calls from their clients on what to do if they are victims of a cybersecurity attack and how to take preventive measures to minimize their risk of being attacked. Attorneys also should be able to address questions from clients on what measures their firms are taking to ensure protection of their clients' information. Trusts and estates attorneys need to be especially proactive in addressing cybersecurity measures with their clients, in both estate planning and estate administration. Identity theft is one key issue, and more and more people have digitized assets in need of tracking and protection from nefarious criminals.
See Ross E. Bruch, Probate Technology, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.
Thursday, January 31, 2019
The integration of technology into the practice of law has been a double-edged sword for most practitioners. On one hand, technology has made some things easier and faster. On the other hand, it can generate a lot of frustration, delay, and expense. When tech began impacting our profession in the early 1990s, the conventional wisdom was for lawyers to focus on doing what only lawyers could do and let the support staff deal with the new technology tools. Of course, it has now become nearly impossible for a lawyer to do his or her job without using technology directly. To make matters worse, the technology tools change at a dizzying pace, and there is often no one around to ask for help. As a result of all of this, lawyers often feel behind the curve and wonder where they should focus their efforts to improve efficiency and profitability. Here are some ideas.
See Barron K. Henley, Technology Tools for Real Property and Trusts and Estates Lawyers, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.