Wills: Another Ethical Dilemma

Several weeks ago I was approached (informally) by a woman in her mid-70's with a question regarding her will. It seems the attorney who drafted the will had contacted her about updating the will to address recent legislative changes made in the law. It had been twenty years since the will was drafted. She also said the attorney wanted to schedule an appointment for her to come in and go over her estate plan.

To the lay person this may seem like an attorney who is looking out for the interest of his client. And this is most likely the case. But many in the legal profession take a more jaded view of the attorney's actions. They would characterize the attorney’s actions as a desperate attempt to make money by soliciting former clients for business. If the latter is the case, his actions are prohibited under ethical restrictions imposed under most state bars. This article deals with the Florida Rules Regulating Professional Conduct.

Florida Ethical Requirements
In Florida, the Rules Regulating Professional Conduct place a number of restrictions on soliciting clients for business. Specifically, Section 4-7.4 states that unless certain restrictive conditions are complied with “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

The question then becomes “what about soliciting former clients to update their wills?” For the answer to this question Florida Bar Ethics Opinion 64-61 sheds some light. To my knowledge the opinion is still valid despite being several decades old. It is cited in a number of recent opinions.

Ethics Opinion 64-61
Florida Bar Ethics Opinion 64-61 states that “a lawyer may notify his clients, whose wills are prepared by the lawyer, of changes in federal tax law or regulations which may affect their wills.” But this is not a rubber stamp for all attorneys to begin soliciting former clients. The Opinion placed several conditions that must exist for the attorney to contact the client. These restrictions include: (1) the lawyer (or his firm) must have prepared the will; (2) the lawyer must not have a reason to believe that the will has been revoked or superseded; (3) the lawyer must have reason to believe that, because of the new developments in the law, the existing will may no longer achieve the testator's desires; and (4) the lawyer may not solicit or suggest his or his firm's professional employment.

Estate Planning: The Life Estate Deed

Beware of the traditional "Life Estate Deed." If you own real estate and want to leave that real estate to your beneficiaries there are two main things to consider: (1) taxes related to the transfer and (2) difficulty in effectuating the transfer. One easy way of transferring real estate to your beneficiaries is the Life Estate Deed.

Life Estate Deed Pros
The Life Estate Deed is a document that deeds your ownership in the real estate to your beneficiary but allows you to retain possession and control of the real estate until you pass away. This type of transfer is usually quick and inexpensive. In most states you may instruct your beneficiary not to record the deed until you pass away. This allows you to maintain your privacy and avoid tensions between beneficiaries until after you pass away. It also prohibits your beneficiary's creditors from attaching a lien to the property while you live.

Life Estate Deed Cons
The cons of a Life Estate Deed are that you will no longer have the same ownership rights to the property once the deed is recorded. For instance, you cannot sell the property without the consent of the beneficiary. Also, the deed is irrevocable once it is recorded and the transfer may be subject to a gift tax.

Recommendation
Based on the above, I recommend you at least look into the Enhanced Life Estate Deed. If you need help deciding which deed is right for you (and if you are reading this post you probably do).

California's Revocable Deed a/k/a Enhanced Life Estate Deed

A number of people who visit this blog from California have asked me why they cannot find references to the California Enhanced Life Estate Deed in their state. The reason is a matter of semantics. You see, in California the Enhanced Life Estate Deed is called a Revocable Deed. The two deeds share essentially the same functions. Those functions are described in my posts Estate Planning and the Enhanced Life Estate Deed and The Difference Between the Enhanced Life Estate Deed, Warranty Deed and Quitclaim Deed.

Recently there has been a movement in California to revise the state's Beneficiary Deeds laws. One reason for the movement may be that most lay persons in California are unaware of the Revocable Deed or do not understand how the Revocable Deed works.

Options for Passing Real Property Upon Death
California allows you to pass your real property to your beneficiaries in a number of different ways. Among the ways property can be passed are: (1) Life Estate Deed, (2) Will or Intestate Succession, (3) Intervivos Trust, (4) Joint Tenancy, (5) Community Property, (6) Intervivos Transfer with Reserved Life Estate, (7) Revocable Deed a/k/a Lady Bird Deed, and (8) Conveyance Pursuant to Non-Probate Transfer. This post deals specifically with the Revocable Deed a/k/a Lady Bird Deed a/k/a Enhanced Life Estate Deed.

The Validity of the Revocable Deed in California
California has recognized the validity of the Revocable Deed from as far back as 1914 (see Tennant v. John Tennant Memorial Home, 167 Cal. 570) and as recent as 2002 (see Bonta v. Burke, 8 Cal. App. 4th 788).

Before you support a change in California’s Beneficiary Deeds laws check out my posts referenced above on the Revocable Deed a/k/a Lady Bird Deed a/k/a Enhanced Life Estate Deed. You will likely find that California already recognizes the type of real property transfer you are looking for.

Landlord and Tenant: Lease Terms

I just got back from county court where the county has finally updated the 1970's carpet and wood panels on the walls and judge's bench. Thank goodness the pipes on the second floor burst and flooded the courtroom. Otherwise the updates never would have been made. But that is not what this post is about.

Lease Agreement "Maximum Occupancy" Clause
While I was in court this morning the judge had to deal with several landlord/tenant law disputes arising out of lease agreement ambiguities. One of the disputes involved a lease agreement legal form where the landlord did not include a "maximum occupancy" clause in the agreement. Apparently the tenant had leased a 1000 sq ft, two bedroom home and had thirteen people (four adults and nine children) living in the home. Without a "maximum occupancy" clause the judge did not allow the landlord to evict the tenant unless the landlord could show the additional people were damaging the house. He couldn't.

A standard "Maximum Occupancy" Clause should look something like this:

"MULTIPLE AND MAXIMUM OCCUPANCY: It is expressly understood that this Lease is between the Owners and each signatory individually and severally. In the event of default by any one signatory, each and every remaining signatory shall be responsible for timely payment of rent and all other provisions of this Lease. The signatories and their minor children shall be the sole occupants of the Premises."

Lease Agreement "Lawn Maintenance" Clause
Another dispute arose out of a rental agreement that failed to state whether the landlord or tenant was responsible for lawn maintenance. That case was also resolved in favor of the tenant. The reason: the landlord drafted the contract and standard contract law says that contracts are to be construed against the drafter. The landlord was the drafter.

A final dispute arose when the landlord tried to enter the rental home and the tenant stuck a gun in his face. The judge evicted the tenant, issued a restraining order against both parties and told the parties to file criminal complaints against each other (unlawful entry against the landlord and assault against the tenant).

An interesting day in court to say the least.

Family Law: Adoption Forms

This is a follow up to my Stepparent Adoption article on July 11. I have received a number of e-mails requesting that I put some of the adoption forms online. The following Adoption form is a Joint Petition for Adoption filed by both the natural and stepparent.

The form is provided for informational purposes only. You will need to have an attorney revise the form to meet your specific needs. It is important that you have an experienced family law attorney review the form. Family Laws frequently change and your attorney will be able to advise you on any new changes. The form is as follows:

IN THE _____________ COURT IN___________ COUNTY, [STATE]
FAMILY DIVISION

CASE NO.:

IN THE MATTER OF THE ADOPTION OF:

[NAME OF ADOPTEE(S)],

Adoptee(s),
_______________________________________/

JOINT PETITION FOR ADOPTION BY STEPPARENT

Pursuant to [PROVIDE YOUR STATE’S ADOPTION STATUTE], petitioner [NAME OF STEPPARENT PETITIONER] ("Petitioner") files this joint petition for adoption of the above named children. This petition is filed by Petitioner along with [NAME OF NATURAL PARENT] (the "Children's [FATHER/MOTHER]"), Petitioner's [WIFE/HUSBAND] and the [FATHER/MOTHER] and guardian of the children. Petitioner and the Children's [FATHER/MOTHER], being sworn, state as follows:

1. This is an action for adoption of [NUMBER OF CHILDREN TO BE ADOPTED] minor children by Petitioner, their step[FATHER/MOTHER].

2. I desire to adopt the following children:
(a.) [NAME OF FIRST CHILD], born on [BIRTHDATE OF FIRST CHILD] in [PLACE OF BIRTH];

(b) [NAME OF SECOND CHILD], born on [BIRTHDATE OF SECOND CHILD] in [PLACE OF BIRTH]; and

(c) [NAME OF THIRD CHILD], born on [BIRTHDATE OF THIRD CHILD] in [PLACE OF BIRTH];.

Certified copies of their birth certificates are attached hereto.

3. The children have resided in my care and custody since [DATE]. I wish to adopt the children because I would like to legally establish the parent-child relationship already existing between the children and me. Since the above date, I have been able to provide adequately for the material needs of the children and am able to continue doing so in the future, as well as to provide for the children=s mental and emotional well-being.

4. I am [AGE] years old and have resided at [STEPPARENT PETITIONER’S ADDRESS] for [NUMBER] years.

5. I married [CHILDREN’S NATURAL PARENT], the [FATHER/MOTHER] of the children on [MARRIAGE DATE] in [PLACE OF MARRIAGE].

6. [IF APPLICABLE] I was divorced from [EX-SPOUSE] on [DATE OF DIVORCE] in [PLACE WHERE DIVORCE WAS FINALIZED].

7. A completed Uniform Child Custody Jurisdiction and Enforcement Act Affidavit (UCCJEA), Florida Supreme Court Approved Family Law Form 12.902(d), is filed with this petition.

8. A description and estimate of the value of any property of the adoptee children is as follows:
The children do not have any property.

9. Consent to the adoption by [ALL CHILDREN TWELVE YEARS OLD OR OLDER] is attached. Consent is not required for the adoption of [CHILDREN UNDER TWELVE YEARS OLD] because they are not twelve (12) years of age.

10. No person exists whose consent is required but did not waive notice or whose consent is required but did not provide consent.

11. The three (3) children all have the same birth [FATHER/MOTHER] whose name is [NAME OF BIRTH PARENT GIVING UP PARENTAL RIGHTS] (the "Birth [FATHER/MOTHER]"). Attached is the Birth [FATHER/MOTHER]'s consent to this adoption.

WHEREFORE, I request that this Court terminate the parental rights of the noncustodial Birth [FATHER/MOTHER], enter a Final Judgment of Adoption of the Minor Children by Petitioner Step[FATHER/MOTHER] and, as requested, change the name of the adopted children.

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this petition and that the punishment for knowingly making a false statement includes fines and/or imprisonment.


Dated: ________________________ _____________________________________
Signature of Petitioner Stepparent

Printed Name:
Address:
Telephone Number:


STATE OF _________________
COUNTY OF _______________

The foregoing instrument was sworn to and subscribed before me this _________ day of _______________________, 2004, by [PETITIONER STEPPARENT] who executed the foregoing and produced ____________________ as identification or is personally known to me.


____________________________________
Signature of Notary Public


(SEAL)

____________________________________
Print, Type or Stamp Commissioned
Name of Notary Public

What is a Legal Nurse Consultant?

A Legal Nurse Consultant is a registered nurse who uses professional expertise as a nurse to consult and advise attorneys on medical-related cases.  Most Legal Nurse Consultants work independently from home for attorneys. Attorneys hire Legal Nurse Consultants as a cost-effective way to learn medical terminology and subtleties of the healthcare system. Consultants also assist attorneys in understanding medical records. Other consultants provide consulting services to insurance companies, government agencies and private corporations.

Legal Nurse Consultant fees range from $100-$200 per hour.

Consulting Services

Consulting services include (1)helping with the discovery process; (2) reviewing medical records; (3) identifying standards of care; (4) preparing reports and summaries; (5) conducting research; and (6) locating expert witnesses. Legal Nurse Consultants may even serve as expert witnesses.

Why Hire A Legal Nurse Consultant?

I used to work with a roadway construction attorney who said "I don't need to know the nuts and bolts of paving a road as long as I have an expert who does." And thank goodness he did have such an expert because, as I informed him, you don't pave a road with nuts and bolts. Okay, so the joke was stupid but it was the best material I had at the time.

What did he mean by his comment? He meant it is better for an experienced expert witness to explain complicated issues to a jury than for an attorney to stumble his way through them. That is certainly the case when it comes to complicated medical issues which is why just about every successful medical malpractice lawyer has a Legal Nurse Consultant on staff.

What is a Legal Nurse Consultant?
It may surprise you to learn that many attorneys who practice medical malpractice and personal injury law have no real working knowledge of the complex medical issues the deal with. Many lack the knowledge to understand even simple medical records. I will refrain from naming the dozen or so friends of mine who practice personal injury law as medical record illiterates. So how do they have any idea whether they have a valid medical malpractice, slip and fall, whiplash or other personal injury case? They rely heavily on Legal Nurse Consultants.

A Legal Nurse Consultant is someone with a nursing degree who reviews, analyzes and summarizes medical records for an attorney. As a Legal Nurse Consultant you may choose to work for plaintiff or defense attorneys, governmental agencies, insurance companies or private corporations. You may choose to work in the geographic area where you are currently located or to move around the country.

What does a Legal Nurse Consultant Do?
A Legal Nurse Consultant advises attorneys both prior to, during and after trial (usually on appeal). If you are a person who does not like to give live testimony at trial you do not have to. There are a number of legal nursing consulting opportunities that do not require trial testimony. If you are (like many attorneys) a frustrated actor, then expert trial witness testimony may be right up your alley.

Most Legal Nurse Consultants deal with cases involving medical malpractice, personal injuries, products liability, toxic and environmental cases, worker's compensation, workplace injury, criminal and family law issues.

If you are looking for an opportunity to work in the field of Legal Nurse Consulting, contact one of our attorneys today.