Under universally accepted law, across every jurisdiction, lawyers owe vital and concrete duties to their clients. The duty of confidentiality. The duty of loyalty. The duty to disclose. And, greatest of all, the duty to inform your clients when their ideas are dumb.
Why is this last duty the greatest? Probably because it’s the most enjoyable. You don’t need to trust me on this one; try it, and you’ll agree. The next time your client makes an inadvisable suggestion, tell them so in as direct (yet polite) a manner as you can: “No, you shouldn’t bring that suit because it will be very costly and result in very little upside.” “No, we can’t make that argument because it’s a 100% stone-cold loser.” “If you say that in court, you will definitely go to jail, and I will, too, probably.” See? Telling a client that their ideas are terrible is the most fun you’ll have all day, guaranteed. Just thinking about it puts a big smile on my face.
But beyond the entertainment aspect, telling them that their ideas are awful and will result in horrific outcomes is a valuable service that attorneys provide for our clients. Estate planning attorneys in particular are trained and experienced in helping their clients to understand which of their ideas will result in an efficient and productive distribution of their assets after death, and which will result in their heirs cursing their name for generations to come. More and more testators today are turning to online estate planning services for their wills and trusts, but until one of those websites provides a pop-up window shouting “Don’t do that, you dummy” at appropriate times, they still can’t measure up to a qualified lawyer.
The value of a good estate planning lawyer is illustrated by the Court of Appeal’s recent decision in Godoy v. Linzner (2024) ___Cal.App.5th ___. The settlor in Godoy executed a restated trust instrument in 2018, aided by who I can only assume was a well-trained and sensible estate planning attorney. The trust left the family residence to the settlor’s three children in three equal shares to hold as tenants in common. Because the settlor wished the residence to stay in the family, if at all possible, the trust instrument included requests that the children retain the property for a minimum of five years following settlor’s death, and, if/when the property was sold, that they consider selling it to a family member. The trust instrument helpfully emphasized that these requests were “precatory and not mandatory.”
One year later, with her trusted attorney now apparently fading far back in the rearview mirror, settlor executed a handwritten amendment to her trust. Now, she dictated that if one of her three children wanted to sell their interest in the property, they were required to sell it to one of the other siblings for no more than $100,000. By the time of settlor’s death, the residence had been appraised at just over million dollars, meaning that this new trust amendment required the beneficiaries to either retain their interest in the property for the rest of their lives, or to sell it at a significant loss.
The beneficiary siblings broke down into two separate camps almost immediately upon their mother’s passing – one sibling who wanted to preserve and honor her mother’s wishes, and two siblings who recognized that their mother’s wishes were unworkable nonsense. Years of litigation ensued.
The trial court ultimately held, and the Court of Appeal affirmed, that the 2019 amendment was void as an unreasonable restraint on alienation under Civil Code section 711. Though settlor had the right to give her property to whomever she wished, she did not have the authority to limit the manner in which those recipients could sell that property from beyond the grave. The 2019 amendment was tossed, and the 2018 trust restatement was restored as the operative trust instrument.
Settlor’s amendment to her estate plan, though well-intentioned (who doesn’t want their children to continue enjoying their childhood home for decades after their parents’ death?), was nevertheless exactly the kind of terrible idea that a good attorney should be prepared (and perhaps excited?) to shoot down. Had the settlor in Godoy gone back to her attorney with her designs to amend the trust, the most likely outcome is that her attorney would have explained (in painstaking detail!) why it was a bad idea, thus sparing settlor’s children from years’ worth of aggravation and hard feelings, not to mention the litigation costs to both the children and the trust estate.
Attorneys may be in the service industry, but we are duty-bound to reject the old adage that “the customer is always right.” To the contrary – we start each day knowing that the customer is frequently wrong, and moreover that it is our legal obligation to point that out for them. Being frank, direct, and always willing to tell a paying client, “No, that’s a bad idea, and it will lead to bad results” is quite literally what they pay us for.