All of this starts with two farmers, a gun and one ends up dead. The dead farmer's wife and estate sue the other farmer and are awarded a large judgment; one that includes millions of dollars in punitive damages. But the widow and estate have a hard time collecting the judgment because of estate planning and how the assets are held. The widow asks the Iowa Court to set aside the legal planning and to give her title to the assets as the transfers were made in anticipation of a judgment; reasonable minds might conclude from the article that the record indicated these transfers were done hastily just after the murder took place and before any criminal charges were filed in the murder case.
Then an editorial appears in the Des Moines Register saying the Iowa Bar Association's ethics committee should investigate the lawyers who's ethics allowed them do the estates and trust planning. The words used are "shell game". My understanding of the writer's point was that lawyer ethics should not allow lawyers to do such things. I'm sure this is a popular notion, but in reality it's a totally unrealistic point of view. Here is why.
The public makes a mistake when they hold lawyers to priestly standards. After all we aren't priests; we're lawyers. And when you come to us asking us to do legal work for you, we are your lawyer.
The editorial is "What role did lawyers play in the ‘shell game'?" and it suggests an unreasonable ethical standard that would result in no lawyer being able to perform estate work for Iowa's farmers. It's not a lawyer's duty when creating wills and trusts to dig behind the motives of clients. To question the motives of clients as to who gets what and when would result in no one having a will or trust. Estate planning would be turned on its head.
After this blog was written and Steve Lombardi's letter to the editor was published, the news item "What role did lawyers play in the 'shell game'?" was removed from the Des Moines Register's webite. We have removed the link because it no longer works.
Most people think a person guilty of killing another person isn't entitled to estate planning legal services, but they too are entitled to the same legal services as the non-killers in society. How would the lawyers know the client may have murdered someone? Do you think they ask for an appointment during a time slot in the afternoon when we take murder confessions? Get real clients don't disclose everything to the lawyer and probably not that they may have killed someone. But what if they did? We still aren't allowed ethically to disclose it or to judge them when dispensing legal advice. After all we aren't priests. If you think this is wrong then consider the following.
What if society thought most rich Iowans should pay more in taxes. Would I as a lawyer have a duty to turn away every wealthy client who seeks to have a life insurance trust created? As you may know a life insurance trust removes the insurance proceeds from the decedent's estate thereby reducing estate taxes. What if I suspected that might be the client's intention? As a lawyer should I inquire and then judge the client's motives refusing to act or to legally advise him as to how this should be done? (See Beyond Death & Taxes, Old Questions, New Answers by Gregory J. England.)
And what about cutting out lazy sons and daughters from an inheritance? When a will is changed will I owe a duty to every heir that is getting cut out of an inheritance? What if your share would increase while your brothers and sisters shares decrease; should I as the lawyer object? Or would you have me just do the legal work that carries out the wishes of your parents and benefits you?
And then where might my motive-judging go next? What if a newspaper editor wrote an editorial that defamed a person in the community. The newspaper editor approaches me as his attorney seeking advice on how to reduce the defamation-claim for damages; should I inquire as to his motives and then turn him away to allow civil damages to be the exacting measure? As attorneys we owe our legal skills to our clients not to some other person who may be affected. Whether the resulting action is just or moral isn't the ethical standard that guides our legal duties and obligations. We are lawyers not priests. Our offices are places where legal advice is discussed and dispensed, not confessionals where you get a lecture about the right and wrong of your actions. Like it or not clients need to be able to obtain legal advice on the ramifications of their actions, not the lawyer's judgment about what they may choose to do. If the client hasn't learned right and wrong from his parents, chances are he's not going to learn it in a ten-minute discussion from me.
In this instance it appears from the editorial that Judge Huscher's ruling had to do with transferring assets in anticipation of a judgment; a legal concept of which I am familiar. If I understand the sequence of the actions, no one had yet been charged with a crime when the trusts were created and deeds transferred. What should the lawyers have done? Should they have questioned and then accused their client of being a murderer? It's not reasonable to create ethical duties and obligations that have no practical application or that erode a person's right to get sound legal advice that carries out the client's wishes. And what was impliedly suggested does exactly that.
If you're going to blame the lawyers for what the clients intended, then those who sell ammunition, duct tape, wire cutters, auto dealers and key makers are all guilty of burglary, robbery, rape, bank robbery, kidnapping and murder. And what about all of those news sources who wrote glowing reports about Bernie Madoff before he confessed to running a $65 Billion Ponzi scheme? Are they also guilty of financial fraud? Maybe the editorial departments of every major news paper needed to investigate the ethical standards of the pro-Madoff news reporting.
Most who know me appreciate the ethical standards of my thirty-plus years of practicing as a civil trial lawyer and that I pull no punches when it comes to adhering to the rules of ethics. In this instance I see nothing wrong with advising, drafting documents and carrying out the wishes of a farmer and his wife sitting before the lawyers and asking for estate planning advice. I rest my case.
To read the Judge's decision in Estate of Tommy Ray Lyon, et. al. vs. Rodney N. Heemstra, et al follow the link.
To read other news stories follow this link.