Trust and estate litigation attorneys are “trusted advisors.” Like estate planning attorneys and other professionals who help clients with wealth management, we are fixers who assist clients with navigating conflict relating to a trust or estate. While we spar in the probate departments of the Superior Court of California, at the end of the day our main function is to advise clients so they can choose a resolution that fits their needs and is achievable in the situation at hand.
The role of litigator as trusted advisor came to mind last week as I sat at McGeorge School of Law listening to Todd Fithian’s upbeat and insightful presentation on the subject of “Amplifying Your Brand.” Todd spoke at the Sacramento Estate Planning Council’s annual Estate Planning Forum event which offers outstanding continuing education and serves as a collaboration incubator for professionals in various fields.
Based in Massachusetts, Todd is the Managing Partner of The Legacy Companies, LLC, a professional, training, consulting and coaching organization primarily focusing on financial advisors. He is a co-author of a white paper published by the National Association of Estate Planners and Councils entitled “High Performance Teaming & Professional Collaboration.”
Todd spoke on the importance of cultivating close collaboration amongst estate planning attorneys, investment advisors, accountants, charitable giving advisors and other professionals so as to achieve creative and customized approaches to wealth management. As Todd explained, professionals tend to focus on their areas of expertise and operate in silos, clients often do not appreciate the benefits of collaboration, and thus a professional may need to step up and organize the advisors if they are to work most productively as a team. There may be increased cost in terms of professional time but ultimately the client obtains a better result.
During the collaborative process, advisors should engage in “above the line” planning, i.e., listening to and understanding on the client’s vision (his or her desired future state), values and goals, before going “below the line” to develop strategies, tactics and tools to implement that vision.
According to Todd, clients seeking wealth management assistance are looking for safety. An advisor can build trust with a new client by showing an open mind and not offering recommendations too early in the process. For example, he tells clients at their first meeting that his goal is for them to leave his office feeling better than when they arrived.
Much of what Todd presented can be applied equally to trust and estate litigators.
Litigation attorneys should start and remain “above the line” with clients, meaning that counsel should endeavor to understand and remain true to the client’s vision of a suitable resolution to the dispute. Of course, the client’s vision may change as the litigation resolves, but the lawyer should take a path that matches the client’s values and goals rather than getting lost in the many skirmishes that occur over the course of a dispute.
Litigators also need to take a collaborative approach. Potential claims may require retention of expert consultants or witnesses, who might be another lawyer, an accountant, an investment advisor, or a mental health professional, to evaluate whether a wrong occurred and the damages associated with that wrong. Reaching across the aisle to opposing counsel, when tactically appropriate, may lead to collaboration in the form of a negotiated resolution.
More broadly, while clients may come to a litigation attorney when a particular dispute or concern has arisen, the trust or estate may have other pressing issues that either have not been identified or been left adrift. When tackling a fire on the roof, a fireman may notice other hazards in the building. In the same vein, while litigation is developing, the litigator may become aware of and be able to help the client address trust administration issues not presently in dispute, which may require the engagement of additional advisors.
Unlike the Lone Ranger who rides in at sunrise, does battle with the adversary, and rides out at sundown, a trust and estate litigator indeed is more of a trusted advisor who guides clients when storm clouds are brewing and collaborates with other advisors as needed to achieve a solution that squares with the client’s objectives.