How Lawyers Can Effectively Leverage Their Published Articles

Writing and publishing articles or blog posts can be a powerful branding and business development tool for lawyers. Not only do they demonstrate your expertise in your practice area, but they also significantly enhance your visibility and credibility.

However, your work doesn’t end once the article is published – in fact, it’s just beginning. Here are some tips to maximize the value, reach and impact of your published work.

1. Optimize for Online Search First and foremost, ensure your article is search engine optimized (SEO). This means incorporating relevant keywords that potential clients might use to find information related to your legal expertise. SEO increases the visibility of your content on search engines like Google, making it easier for your target audience to find you.

2. Share on Social Media Utilize your personal and professional social media platforms to share your article. LinkedIn, Twitter and even Facebook are excellent venues for reaching other professionals and potential clients. Don’t just share it once; periodically repost it, especially if the topic is evergreen. Engage with comments and discussions to further boost your post’s visibility.

3. Incorporate Into Newsletters If you or your firm sends out a regular newsletter, include a link to your article. This not only provides added value to your subscribers but also keeps your existing client base engaged with your latest insights and activities. This approach can help reinforce your position as a thought leader in your field. Also, consider launching a LinkedIn newsletter. LinkedIn’s platform offers a unique opportunity to reach a professional audience directly, increasing the potential for networking and attracting new clients who are actively interested in your area of expertise.

4. Speak at Conferences and Seminars Use your article as a springboard to secure speaking engagements. Conferences, seminars and panel discussions often look for experts who can contribute interesting insights. Your article can serve as a proof of your expertise and a teaser of your presentation content, making you an attractive candidate for these events.

5. Create Multimedia Versions Expand the reach of your article by adapting it into different formats. Consider recording a podcast episode discussing the topic in depth, or creating a short-form video for LinkedIn and YouTube. These formats can attract different segments of your audience and make the content more accessible.

6. Network Through Professional Groups Share your article in professional groups and online forums in your field, as well as alumni groups (law school, undergrad school and former firms). This can lead to discussions with peers and can even attract referrals. Active participation in these groups, coupled with sharing insightful content, can significantly expand your professional network.

7. Use as a Teaching Resource Offer to guest lecture at local law schools and use your article as a teaching resource. This not only enhances your reputation as an expert but also builds relationships with the upcoming generation of lawyers who could become colleagues or refer clients in the future.

8. Repurpose Content for Blogs or Articles Break down the article into smaller blog posts or develop certain points further into new articles. This can help maintain a consistent stream of content on your website, which is good for SEO and keeps your audience engaged over time.

9. Monitor and Engage with Feedback Keep an eye on comments and feedback from your article across all platforms. Engaging with readers can provide insights into what your audience finds useful, shaping your future writing to better meet their needs. It also helps in building a loyal following.

10. Track Metrics Utilize analytics tools (web, social media and email) to track how well your article performs in terms of views, shares and engagement. This data can help you understand what works and what doesn’t, guiding your content strategy for future articles.

11. Leverage the Power of Content Repurposing Content repurposing can significantly extend the life and reach of your original article. By transforming the article into different content formats—such as infographics, webinars, slide decks or even e-books—you cater to various learning styles and preferences, reaching a broader audience. This strategy not only maximizes your content’s exposure but also enhances engagement by presenting the information in new, accessible ways. Repurposing content can help solidify your reputation as a versatile and resourceful expert in your field.

Publishing an article or blog post is just the beginning. By strategically promoting and leveraging your published works, you can enhance your visibility, establish yourself as a thought leader and attract more clients. Every article has the potential to open new doors; it’s up to you to make sure it does!

Five Ways to Encourage Lawyer Participation With Your CRM System

Lawyers are busy and often resistant to change, so getting them on board with using a new or even your existing CRM system can be challenging.

But if you approach your CRM efforts as a value-added benefit that will support their marketing and business development efforts and is not difficult to use or time-consuming, you can increase CRM adoption and participation by your lawyer population at any size law firm or professional services organization. Here’s how.

  1. Explain what’s in it for them. Spend the time to clearly outline to users how the CRM system will directly benefit them, not just the organiztion as a whole.
  2. Put yourself in their shoes. Overcomplicated systems and non-technical users are a recipe for disaster. The whole point of implementing a CRM system is to improve efficiency and productivity, not hinder it, so make it easy for your lawyers to use it – or they simply won’t. In addition, lawyers use many different systems on a daily basis, such as time and billing, practice management and document management. CRM can become the one place to get all or most of what they need and allow them more time to be lawyers. Tip – look for CRM systems that include customizable dashboards to personalize daily views.
  3. Show lawyers how easy it is to gain value and insights from the information in the CRM on their own. Engage your marketing professionals to regularly meet with lawyers on a regular basis to gather new and updated contact information.
  4. Find a system that makes it easy for lawyers to share appointments and activities with CRM. This way, marketing professionals can provide strategic, proactive support for upcoming prospect and client meetings based on CRM data. For example, let’s say your marketing manager sees a calendar appointment with a prospective client on an attorney’s schedule. She could then reach out to them and proactively create pitch materials and share who-knows-who info, past matters information and other intelligence. After meetings, attorneys can be prompted to add their meeting notes in CRM too.
  5. Maintain clean, updated CRM data. Your CRM is only as useful and strong as the information entered into it, so if its users are inputting inaccurate data, you’ll only distill inaccurate insights from it. Ensure your data is up to date and accurate, and implement a regular data cleaning process which you can outsource if you don’t have internal resources to manage it.

5 Ways to Encourage Lawyer Participation With Your CRM System

While the keys to CRM adoption success will vary for each firm, the common, important thread is always the “value exchange.” If you make it easy for your attorneys to contribute valuable information – and ensure they are getting value out of the CRM – adoption and CRM success will follow.

Increasing CRM adoption and participation takes time, but it is an important investment to make and one that will provide many long-term benefits for your lawyers and your firm.

Another strategy to consider: redefining CRM success by minimizing the need for attorney adoption. Many smart firms are moving away from the traditional model of having attorneys be responsible for data entry. We’ll discuss that in an upcoming post.

© Copyright 2022 CLIENTSFirst Consulting

11 Ways to Tap into the Legal Market’s Greenfield

A survey conducted in 2019 determined that nearly 80% of Americans with a legal issue didn’t hire a lawyer to handle it. When you consider that over 50% of people in the US claim to have had a legal issue at some point over the last two years, you’re looking at a considerable amount of potential clients. In other words, there is an enormous array of people who need lawyers who simply aren’t hiring one.

The secret to tapping into this greenfield dormant legal market is knowing the reasons behind their aversion to lawyers. By understanding the reasons behind people’s hesitancy to pay for legal services, you can attempt to better appeal to them, and tap into a huge pool of potential clients.

Why People Are Hesitant To Hire Lawyers:

!Price

The first and most obvious reason why people are hesitant to hire a lawyer is the price tag attached to them. Considering the majority of Americans are living paycheck to paycheck, it’s not surprising that paying between $100 and $400 an hour for a lawyer (or more) is a stretch for their wallets.

Even “simple” legal cases can cost thousands of dollars, and more complex ones can be financially detrimental for a cash-strapped client. Although many lawyers are starting to move towards a flat-fee pricing system that delivers an upfront summary of costs rather than wondering how much your case will all add up, a lot of people still aren’t biting.

It’s time for lawyers to start asking themselves how they can transform the way they deliver and price their legal services to tap into this untapped world of would-be clients.

!Lack of Transparency

Ever heard the joke, “what’s the difference between a vacuum cleaner and a lawyer riding a motorcycle?” — “The vacuum cleaner has the dirtbag on the inside.” This is just one of the many zingers out there about lawyers. It’s no secret that many swindling lawyers have made it hard for the honest ones in the profession. Now, lawyers have to defend themselves against lousy reputations for lack of transparency about their prices.

That’s why it’s incredibly important that you lay out your pricing system from day one. Be clear about your prices, and you’ll save you and your client a world of trouble later on.

!Bad Past Experiences

Another frequent reason for the untapped legal market not hiring lawyers is because many people have had bad experiences with a lawyer in the past. Surprisingly, people’s biggest reason for a negative experience is often because they felt their lawyers were very bad at communication. Believe it or not, a positive client experience doesn’t always come down to their lawyer winning their case or not. Clients often just want to be informed on their case and answered in a timely manner when they have a question.

That means there are people out there thrilled with their lawyers and their lawyers didn’t even give them the best possible outcome on their case. Ultimately, what people want is a positive client journey. Yet, without a systematic method in place, it can be hard to deliver the kind of service that people want.

The only way to convince people that not all lawyers are bad is to get things started on the right foot. Using legal client intake software is the only way to respond quickly when you’re handling multiple cases at a time. Workflow automation for law firms makes your clients feel connected to you from the first moment they reach out. Legal client intake software allows you to set up trigger-based emails that automatically send a message out based on an action of your choosing. The end result is satisfied clients who feel as if they’re your only client.

©2021 — Lawmatics

Article by Sarah Bottorff with Lawmatics.
For more articles about the legal market, visit the NLR Business of Law section.

IMS Insights Episode 11: COVID-19 Analysts Briefing on Litigation Impacts

To better understand how the COVID-19 pandemic is impacting the commercial litigation community, IMS ExpertServices conducted analysis and gathered input during the first half of April from more than 400 attorneys, in-house counsel, experts, and stakeholders throughout the commercial litigation community.

In this special podcast feature, you’ll hear commentary from the April 30 Analysts Briefing hosted by IMS on the study’s top findings and other key trends for commercial litigators, with discussion from a panel of thought leaders including:·

·         James Crane, Chief Revenue Officer at IMS ExpertServices

·         Rudhir Krishtel, Certified Co-Active Coach and Facilitator with Krishtel Coaching, Former Senior Patent Counsel at Apple, Former Partner at Fish & Richardson, and IMS Thought Leader and Contributor

·         Nate Robson, Litigation Editor at The American Lawyer

·         Eilene Spear, Operations and Project Manager at The National Law Review

·         Ty Sagalow, Commercial insurance expert and IMS thought leader and contributor


© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.

For more on COVID-19 litigation, see the National Law Review Coronavirus News section.

 

What’s Ahead: An Amendment to Rule 30(b)(6) That Requires Parties to Confer

It’s getting more complicated to take and defend depositions because of the COVID-19 pandemic. And now there is a proposed new change to the Federal Rules of Civil Procedure that would require parties to confer before a plaintiff takes the deposition of a corporate representative. Specifically, the Judicial Conference Advisory Committee on Civil Rules has proposed an amendment to Federal Rule of Civil Procedure 30(b)(6) that requires parties to confer in good faith before the deposition takes place about both the topics and the identity of the witness or witnesses.

In some ways, this change isn’t new. Because many attorneys already have this type of discussion with opposing counsel before a corporate representative deposition, and the Advisory Committee notes make it clear that the parties aren’t required to reach an agreement, many think the amendment won’t change much. And its intentions are good. The Advisory Committee developed the amendment to try to avoid disputes about “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”

But, as with most things, the devil is in the details. Some fear that the requirement will create more disputes about these depositions than it will prevent.

First, if the parties must confer about the identity of the witness, that could undermine a corporation’s right to choose its witness. The Advisory Committee notes state that the corporation still has the right to choose its deponent, but the rule change could encourage motion practice geared toward preventing a corporation from designating a specific person or trying to force a corporation to designate C-suite executives, rather than the person who the company believes is the right person to testify.

Second, the amendment could incentivize a party to request multiple witnesses so that they can take multiple, seven-hour depositions. These incentives already exist to some extent under the current rules, but the new rules may increase them.

Third, absent from the proposed amendment is any deadline by which the parties must confer or when the discussions should end. The Advisory Committee notes state that “the conference process must be completed a reasonable time before the deposition is scheduled to occur.” Without a set deadline, repeated or eleventh hour requests for a conference could lead to harassment and make it difficult for defense counsel to prepare a witness to testify about ever-changing topics. While this risk can be minimized by communication, it likely can’t be avoided entirely. Finally, the new rule also does not address what happens if the conference does not happen, or if one party refuses to participate.

The proposed amendment to Rule 30(b)(6) is not yet finalized. It must still be approved by the U.S. Supreme Court. If the Court approves, the new rule could take effect as early as December 1, 2020, unless Congress prevents it. If it takes effect, attorneys can expect to spend more time conferring with opposing counsel before a corporate representative witness deposition. Inside and outside counsel for corporations should begin to prepare for this new rule, even while they are facing the additional challenges of today.


© 2020 Schiff Hardin LLP

For more on changes to legal procedures, see the National Law Review Civil Procedure section.

Attorney Wellness and Mindfulness Part 2: What does Mindfulness Practice Look Like?

In Part I of our series on wellness in the legal industry, Elena Rand, a former litigator and legal executive coach with a Master’s degree in Clinical Social Work and current CMO of Wiggin and Dana identified why the legal industry needs to understand chronic stress and how it impacts the body, and how mindfulness, even at a basic level, can help improve both individual attorney’s performance and the often stressful law firm environment.

Today, Ms. Rand goes over the basics of a mindfulness practice, as well as addressing some common barriers to practicing mindfulness and how to overcome these barriers.

What are some simple practices that a novice or even a skeptic might be able to take on to start feeling some small benefit? And along those lines, do you need to devote a lot of time to mindfulness practices to begin to see a difference? What kind of commitment level do you need to show?

There is no right or wrong way to do mindfulness practice. There are no absolute time requirements or limits and there is no Olympic medal for “ great mindfulness”. There’s no level of perfection, there is nothing to “achieve” or “strive for” and that’s a key part of the practice. In fact, if we go back to what mindfulness is, it asks us to be accepting of whatever comes up and sometimes whatever comes up is “I only have five minutes to breathe and guess what? In those five minutes, I’m obsessing about that conversation that just happened down the hall,” but mindfulness is being aware of exactly that, and accepting of that.  That is the work. It’s saying, “you know what, I just spent five minutes inhaling and exhaling and trying very hard not to think about that conversation, and all I did was think about that conversation.”  If you brought your attention to that in the moment and then proceeded to pay attention to the next moment, and the next moment… well, then that is mindfulness meditating.  You were just meditating. I want to debunk the idea that mindfulness is this sort of clear-minded perfection that will alleviate all your worries, obsessions, preoccupations etc.

You can do it for five minutes, you can do it for 10 minutes, you can do it for three minutes, you can do it in any number of ways. But again, it’s intentionally bringing your attention to what’s arising and accepting it.

As to how do you actually do it—well, definitely one way that we’ve all heard of is breathing techniques. And there’s a lot that’s been written about just focusing on your breath.

Inhale, exhale, inhaling and exhaling for any number of minutes is a start.  And during that time what will invariably happen is what’s been called monkey mind, which is a flurry of thoughts.  Everything from your clients, a brief for the meeting you have a four o’clock as well as an argument you had with your spouse and your conversation with a firm partner.  All of that’s going to be going through your mind while you’re just trying to inhale and exhale. And that’s the practice. And the idea is to gently bring your attention back to the singularity of your breath over and over and over and over again. So that’s one modality, but some people I’ve worked with really aren’t into the breathing thing, and they ask for another way.

Another way is intentional activity.   Select something that you know you do every day. Eat lunch, go for a walk, drive home and bring your attention to that action. What does it feel like? What does it feel to actually taste my food? What is it? How many times do I chew? What does it feel like to actually swallow that food? Am I hungry still? Am I not? This is a mindfulness practice that focuses on taking an action.

A third of mindfulness practice is what I call sort of a body scan.  This is just sitting, not focusing necessarily on your breath, but focusing on your body, which we don’t always do.  I mean, some people joke that our bodies are there to help us carry our heads from meeting to meeting.  The reality is that many of us are not in touch with our bodies. The body scan is another opportunity to kind of pause, and bring explicit attention to your body. Start with your feet. What do your feet feel like? Are they grounded? Can you feel your feet? Can you feel your ankle? And then sort of work your way through your body and what the sensation is.  You’re really looking for that sensory attention. So there are three examples of ways that you can introduce mindfulness in a practical way, you don’t need to go to an Ashram experience.

Let’s talk about identifying barriers.  With wellness there’s a lot of mindfulness, there’s a lot of talk about self-compassion, patience, relaxing and will practicing all of this mindfulness take away from your competitive edge?  Will mindfulness make it harder to win for my clients and my firm? It’s a tough world and I need to be strong and win. Is mindfulness going to weaken my competitive and adversarial instincts?

For anyone who really believes that genuinely I would recommend they read The Art of War by Sun Tzu.  In that book, there’s a lot of wisdom about the power of self-compassion and compassion for your opponent that strengthens your ability to have real strategic clarity about what needs to get done next. So that’s from a philosophical perspective.

From a purely personal perspective, at the end of the day anyone who is going to be fiercely competitive and adversarial also needs clarity and strategy. That takes us back to what the purpose of mindfulness is, to improve your executive functioning by addressing your body and strengthening your ability so that you can endure. I think that that if you put it in that framework, you can actually sell it a little bit more to people who want to be more competitive and more adversarial.

This is the quiet backstage work that competitive attorneys have to be doing on themselves in order to go into battle and be as effective a warrior as they can be. I don’t see it as at odds. I see this as adding to their repertoire of, strategic skill-building so that they can be as effective and as competitive as they want. It’s working on a muscle that has kind of atrophied, which is self-care, and their wellness and strengthening that so that they can choose to do with that whatever they would like.

The law offices like many business environments, seem to be in a constant state of emergency which can make it difficult to be consistent with a mindfulness practice. How do you maintain a mindful practice in a high-pressure environment?  Are there any tips, tricks, life hacks, anything like that to make it more likely to be successful?

What I personally do, which is very simple, is I have a separate space, a different chair.  It doesn’t look like a meditation chair. I get to sit in that chair and I have a cup of tea, in-between meetings or right before the end of the day.  This chair is away from my desk, and I will intentionally make a cup of tea in my office and I sit in that chair and take some time for myself, measuring time with an app on my FitBit.  Then, I know that at least I have incorporated some level of breathing or grounding or intentional action into my day, and that’s separate from my other practices. Some firms have taken to having a mindfulness group that meets together monthly.

I think when you introduce it that way to people it becomes achievable, but obstacles still exist.  It takes about a month for an action to turn into a habit. One way to reach that point is to enlist a friend, someone who is like-minded and values achieving mindfulness as much as you do to help keep you on track.

I think one of the biggest obstacles is time and perception. The timepiece is personal.  At the end of the day, if it’s important to you, you will find the time to take care of you, which goes back to wellness.

Again, I think a lot of people have a perception of, “Oh, that touchy-feely guru wellness stuff that’s all really kind of hip and important now in law firms.”  I really worry and want to make sure that the concern for wellness is not a passing fashion. I want sustained change, and I think that even the perception of those types of wellness activities at law firms is changing as we have more and more millennials who are asking for it or expecting it, who are embarking upon it, who are creating, healthy boundaries around their work and their life and their wellness. The barriers of time, and how it is perceived, are changing, but it’s slow.

My big hope right now is that this doesn’t become a flash in the pan kind of interest, but rather a pivotal moment and a paradigm shift, like what happened 10 years ago with the law firm’s focusing on business development and maternity leave where the industry realized the need for change and there was a shift in industry norms.

I am a big proponent of embarking upon wellness as a lifestyle change and not a quick fix. There was no quick fix to changing maternity policies and flex-time at law firms.  There was no quick fix to introduce in the ideas of business development and leadership skills, and there’s going to be no quick fix for really shifting the law firm culture into a wellness culture so that attorneys can be doing all the things that are expected of them. We need to embark on the change mindfully and with intention so that we bring about meaningful culture change to the legal community.

Many thanks to Ms. Rand for her time and expertise on this important topic. Elena Rand and Eilene Spear of the National Law Review will be hosting a panel on this topic at the Momentum Events Employee Wellness Event for Legal and Professional Services Providers at the Riverside Hotel in Fort Lauderdale on February 27- 28.


Copyright ©2020 National Law Forum, LLC

For more on the topic, please see the National Law Review Law Office Management page.

Letters of Wishes: An Administrative and Moral Headache in Disguise?

1. LETTERS OF WISHES ARE THEORETICALLY SOUND

Trustees may have difficulties determining whether to make distributions when the grantor’s intentions are unclear. Consider a trust provision that provides for a beneficiary’s support in the form of reasonable medical expenses. The trust’s sole beneficiary approaches the trustee requesting a distribution for a gastric bypass surgery. The surgery can cost upwards of $45,000 and is the preferred method of achieving seventy-five pounds of weight loss. However, the surgery may be unsuccessful, and may result in post-operation complications and side effects that could impact the beneficiary’s health and require further distributions. Is the surgery a reasonable medical expense? Should the trustee make the distribution for the surgery?

Depending on the trustee, and his or her relationship to the grantor, the answer to the above questions is likely different. Scholars suggest that trustees should administer a trust “in [the] state of mind in which it was contemplated by the settlor that [the trustee] would act.”[1] If a spouse is serving as a trustee, he or she seemingly has ample opportunity to determine the grantor’s intent. If the drafting attorney is the trustee, the trustee may have gathered insight into the grantor’s mindset and goals while drafting the trust that could be applied to administration. Consider next a corporate trustee who enters the picture well after the grantor’s death. These trustees may have never met the grantor and are unlikely to have anything more than the trust instrument to guide administration. When contemplating a distribution to a beneficiary, each trustee should rely on the terms of the trust to determine whether the distribution should be made, although it is likely that each trustee’s perspective and relationship with the grantor will impact his or her decision.

A significant challenge many trustees face is that terms like health, education, maintenance, support, and best interests are as common in trust instruments as they are interpretive. Because these terms are interpretive, their application can be challenging even for the most diligent trustee; the interplay between these interpretive words/phrases and social, economic, and legal changes that occur during the administration of a trust can prove difficult to manage. In determining whether to make a discretionary distribution what must, or may the trustee rely on? Just the trust instrument? Extrinsic evidence? Personal opinion?

A. Enter the Letter of Wishes

A letter of wishes is a document that allows a grantor to express his or her goals for the trust. Information included can vary, but they offer information about how the grantor wants the trust to be administered by giving insight into the grantor’s state of mind, opinions on distributions, and issues that may arise with the trust’s beneficiaries.[2] These letters can serve two separate but equally important purposes. First, a letter of wishes can give the grantor the sense that the trustee fully understands their goals for the trust and can administer it in accordance with those goals. Second, letters of wishes can give a trustee something to proverbially hang their hat on when looking for guidance as to whether to make a distribution as the letter can clarify a trust instrument’s general terms.

In the example above, a letter explaining the trustee’s hesitance toward making distributions for cosmetic medical procedures would be valuable. Instead of guesswork, a letter outlining the grantor’s interpretation of the trust’s terms can assist a trustee in choosing to make distributions with greater confidence and flexibility.[3] This is the crux of the argument for many proponents of letters of wishes.[4]

2. LOGISTICS OF INCORPORATING A LETTER OF WISHES INTO AN ESTATE PLAN

Though letters of wishes are thought of as an informal tool[5] drafted by the grantor for the trustee’s benefit, the timing and method of drafting should be considered in relation to state trust laws by any practitioner who recommends its use to a client. Consideration should also be given to whether the letter should be incorporated into the trust as an exhibit or whether the letter should bind the trustee.

A. What is the Ideal Time to Draft a Letter of Wishes?

Practitioners should consider advising clients to draft letters of wishes close to the time the trust is settled in order to avoid disputes over whether the letter is representative of the grantor’s intent.[6] The following is illustrative: in 2017, immediately after selling his business, at his attorney’s advice, Grantor executes a discretionary trust for Grantor’s grandchildren to provide for their college educations. In 2022, the Grantor is now retired and has time to finally read the education trust that his attorney prepared for him.  At that time, the Grantor writes a letter of wishes explaining the grantor’s preference for distributions from the trust that further the pursuit of a STEM college education by Grantor’s grandchildren.  Shortly thereafter, all but one of Grantor’s grandchildren enroll in college to pursue liberal arts degrees.  The golden grandchild enrolls in a STEM program at his grandfather’s alma mater. The letter of wishes, drafted well after a significant passage of time, reflects that perhaps the Grantor’s opinions and relationships with his grandchildren may have changed. The trust does not have sufficient funds to cover the college tuition for all of the grandchildren and so the trustee must determine whether or not to make tuition payments for each grandchild or only certain grandchildren.  What is the trustee to do – follow the terms of the trust or follow the current wishes of the grantor?  Because of the timing as to the execution of the letter of wishes – there is an argument that the letter of wishes should be ignored.

Hugh v. Amalgamated Tr. & Sav. Bank[7] illustrates how timing can impact the effectiveness of a grantor’s extrinsic letters.[8] In Hugh, the Illinois Court of Appeals determined that the grantor did not gift land to a trust for the benefit of his grandchildren in part because letters expressing the grantor’s desire that the land be gifted to the grandchildren’s trust were delivered to the trustee several years after the trust was settled.[9] The court noted that the grantor’s exercise of dominion and control over the land in the time between when the grantor settled the trust and drafted the letters and when the letters were actually delivered to the trustee indicated that the grantor’s intent was to retain the property and not to make a gift.[10] Therefore, given the complications that may arise, the timing of the letter is very important.

B. How Involved Should an Estate Planning Attorney be in Drafting a Letter of Wishes?

Practitioners should consider their own involvement in drafting a letter of wishes and how differing degrees of involvement can impact the trust. Letters of wishes are often personal documents that allow a grantor to express his or her feelings about beneficiaries, philosophy on distributions, and goals for how the grantor’s legacy should be maintained.[11] Though the letter may be of great importance to the grantor, significant attorney involvement can complicate the trust drafting process by risking inclusion of precatory language in the trust instrument and presenting an opportunity for a grantor to incur significant legal fees for something of questionable utility. Executing a letter of wishes in conjunction with a trust instrument may cause a grantor to request that language from the letter be incorporated into the trust. Though many estate planning clients are sophisticated, the risk of creating ambiguity in the trust with emotional, personal, and imprecise language may be lost on them.[12] This risk should not be lost on their attorney. Time constraints and workload may cause estate planning attorneys to devote little thought to the letter of wishes, even though the letter may be important to the client and may risk insertion of precatory language into the trust document.

C. To be Effective, Must a Letter of Wishes be Incorporated into the Trust?

As letters of wishes are not legally binding on the trustee in and of themselves,[13] grantors must rely on a trustee feeling morally and ethically obligated to administer the trust in accordance with the letter. A solution to this problem may be to incorporate the letter of wishes into the trust as an exhibit. Matter of Estate of Kirk suggests that this option may be feasible as the court found a handwritten note attached to a formal trust amendment to be part of the amendment for purposes of administering the trust.[14] However, some scholars counsel against this, as attaching the letter as an exhibit would make the letter discoverable by beneficiaries, who may use the letter as an opportunity to increase the likelihood of getting a distribution or may find the letter hurtful.[15] Practitioners should counsel clients using this option to be sure that the letter does not contradict the trust instrument’s terms. Contradictions of this sort could be used as evidence of ambiguity, subjecting the trust to attacks from dissatisfied beneficiaries.

D. Should the Letter be Binding on the Trustee?

Scholars agree that letters of wishes should be made explicitly non-binding on the trustee, arguing that binding letters would interfere with the trustee’s discretion and hinder administration.[16] This argument is bolstered by the fact that the purpose of using more general language in a trust instrument is to provide the trustee with flexibility so that the trust can adapt to social, legal, and economic changes that impact administration.[17] Although the lack of litigation over letters of wishes may indicate that letters of wishes are often taken into account and used in administering the trust,[18] grantors should understand that the letters are deliberately non-binding in order to reap the benefits of adaptability. Grantors and their counsel should evaluate the risks of making a letter of wishes binding, and consider the benefits of a non-binding instrument.

3. DIGGING DEEPER: ARE LETTERS OF WISHES TRULY A POSITIVE ADDITION TO AN ESTATE PLAN?

Fast forward 10 years in the hypothetical posed in Part 1. Suppose you are approached by the trustee who has just found the letter expressing the grantor’s distaste for cosmetic procedures. Also assume that the trustee just received the gastric bypass distribution request. The trustee asks the attorney whether he or she must rely on the letter, what do you tell them? What if they ask whether they can exercise their discretion? Or what the trustee’s moral obligations are? Could the letter be deemed an amendment? The answers are unclear, but the following section applies scholarly opinion, statutory authority, and case law to explain how these issues can be addressed by practitioners.

A. Does the Trustee Have to Rely on the Letter?

While scholarly opinion is generally favorable toward letters of wishes, issues can complicate the positive purpose for which these letters are drafted. The first issue is whether the trustee has any obligation to rely on a letter of wishes. While trustees have historically abided by letters of wishes,[19] the letters are usually non-binding and often do not need to be disclosed to beneficiaries.[20] This means that the trustee has no legal obligation to make or forego making distributions in accordance with a letter of wishes.[21] Further, as noted by the restatement, letters of wishes are generally considered private correspondence between the grantor and trustee that offer guidance to the trustee, suggesting that the trustee has no duty to consider or abide by the letter in making a discretionary distribution.[22] Practitioners should be sure to discuss this with clients when deciding who to name as trustee to ensure that the client picks a trustee who is capable of managing the trust financially and effectuating the grantor’s intent to the full extent allowed by the law.

B. If the Trustee Wants to Consider a Grantor’s Letter of Wishes, Can They?

Further, a trustee may not be able to consider a grantor’s letter of wishes even if they want to. For example, Illinois common law provides that the general goal in construing a trust is to determine the grantor’s intent and to give effect to that intent if it is not contrary to law or public policy.[23] The grantor’s intent is to be determined solely by reference to the plain language of the trust itself.[24] Extrinsic evidence is only appropriate if the trust is ambiguous and the grantor’s intent cannot be ascertained.[25] When the language of a document is clear and unambiguous, a court should not modify or create new terms.[26] While Illinois courts have not addressed how a letter of wishes should be treated in relation to these rules of interpretation, Illinois’ Court of Appeals in In re Estate of Crooks noted that a decedent’s letter directing parcels of land to be transferred to him individually—which contradicted his previously executed will, trust, and quitclaim deeds directing the parcels to be transferred to a revocable trust—could not be used by a disgruntled heir to create an ambiguity in the decedent’s will, trust, or quitclaim deeds.[27] This suggests that a letter of wishes would be treated similarly unless there was an ambiguity in the four corners of the trust.

Practitioners should ensure that they are familiar with the statutes and common law governing trust interpretation for the state that governs the trusts they administer. While Illinois is fairly restrictive as far as what the trustee can rely on in administering the trust, Florida is more liberal.[28] In Kritchman v. Wolk, Florida’s Court of Appeals found that co-trustees of a revocable trust breached their duties of prudent administration and impartiality by failing to pay a beneficiary’s education expenses as requested in a letter from the grantor to the co-trustees prior to her death.[29] As such, the state where a letter of wishes is executed could impact whether a trustee may refer to it in administering the trust.[30] Further, the trust’s terms should be considered carefully to determine whether a letter of wishes or other written directive from the grantor should have any impact on administering the trust.

C. Moral and Ethical Obligations

While a trustee is unlikely to be required by law to consider a letter of wishes when administering a trust—and may, in fact, be prohibited from considering such a letter—they may feel a moral or ethical obligation to consider the grantor’s wishes when making discretionary distributions. Scholars suggest that trustees should administer trusts “in the state of mind contemplated by the settlor.”[31] Scholars also note that letters of wishes are “[m]oral and emotional accompaniments to a formal distribution scheme, [which]. . . have an important role to play in the planning process.”[32] This suggests that trustees may feel obligated to administer a trust consistently with a grantor’s letter of wishes. However, as shown by Kritchman, trustees without a personal connection to the grantor may feel no obligation to administer trusts in accordance with a grantor’s letter of wishes and may instead rely solely on the terms of the trust.[33] grantors and attorney’s should consider a potential trustee’s moral or ethical disposition towards a letter of wishes because this sense of obligation may depend on the trustee’s relationship with the grantor.[34]

D. Is the Letter an Amendment?

Depending on the circumstances under which a letter is drafted and signed, in addition to the letter’s content, some could argue that a letter of wishes is an amendment to a trust. Though many trust statutes require amendments to be made in accordance with the trust’s terms, a significant number of states allow a trust to be amended “by any other method manifesting clear and convincing evidence of the settlor’s intent.”[35] Arguably, a letter of wishes expressing a grantor’s specific desire as to what distributions should and should not be made could function as an amendment. However, no United States federal or state court has addressed the issue.

In Illinois, a trust can be amended by reserving the right to amend in the trust instrument.[36] If the trust instrument specifically describes the method for amendment then that method alone must be used to amend the trust.[37] Scholars suggest that Illinois trusts should be drafted in such a way that all amendments must be prepared by a lawyer familiar with the trust instrument.[38] Despite this guidance, the status of a letter of wishes as an amendment to an Illinois trust uncertain. While it is possible that a letter of wishes could be drafted in such a way that it meets the trust’s requirements, it is dependent on the trust instrument’s amendment provision(s). If the grantor wants their letter to function as an amendment, the trust instrument would need to be drafted to ensure that the letter meets the trust instrument’s formal requirements. Drafting a trust instrument in this way may not be advisable because of the potential for introducing precatory language and ambiguity into the trust.

An example serves to further illustrate this issue. Consider a marital trust instrument that allows discretionary distributions for either the beneficiary-spouse’s support or best interests. Assume that both terms are defined with substantive differences. Suppose the grantor drafts a subsequent letter of wishes explaining how the grantor would determine what is in his or her spouse’s best interest, but uses language that mirrors the trust instrument’s definition of support. Should the trust be considered amended to reflect a support standard for all discretionary distributions? The answer depends on the letter’s wording, governing state law, and the trust’s terms. In Illinois, such a letter would be unlikely to amend the trust unless the trust instrument’s amendment provision was drafted to allow for such a letter to function as an amendment.[39] However, a letter of wishes may be more likely to amend a trust in states like Wisconsin[40] and Kentucky[41] that follow the UTC’s more lenient provision.[42]

4. CONCLUSION

While letters of wishes may aid a trustee in administering a discretionary trust and provide the grantor with peace of mind, grantors and their counsel should think carefully about whether a letter of wishes is appropriate for the grantor’s situation. The uncertain state of the law as to the effect that a letter of wishes has on trust administration suggests there is more to letters of wishes than meets the eye. Though scholars generally praise letters of wishes as a means for a grantor to “communicate their cultural beliefs, values, and practices”[43] or as “helpful to a trustee in ascertaining the settlor’s state of mind, objectives, and purposes in establishing [a] discretionary trust,”[44] counsel should be aware that a letter may cause problems in administering the trust instead of solving them.[45] Practitioners who recommend a letter of wishes and/or whose clients choose to include them in their estate plan should advise clients as to the uncertain status of letters of wishes as a viable estate planning tool. Further, any decision to include a letter of wishes in an estate plan should only be made with an understanding of state trust statutes and case law and careful consideration of who to name as trustee.


[1] Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts § 187 (2006).
[2] See Alexander A. Bove, Jr., The Letter of Wishes: Can We Influence Discretion in Discretionary Trusts?, 35 ACTEC J. 38, 39 (2009).
[3] Id.; Edward C. Halbach, Problems of Discretion in Discretionary Trusts, 61 Colum. L. Rev. 1425 (1961) (arguing that the trustee should be given notice of the trust’s purpose and the grantor’s goals and beliefs to administer the trust in the way the grantor intended).
[4] See e.g., Bove, supra note 2, at 43; Henry Christensen III, 100 Years is a Long Time – New Concepts and Practical Planning Ideas, SN025 ALI-ABA 149, 183–84 (2007) (“[A letter of wishes] permits much more flexibility to. . . the trustee, who has more flexibility built into the trust instrument to exercise powers consistently with the intent of the settlor, rather than at the precise direction of the settlor, which was usually expressed in the vacuum of unknown and unanticipated events.”).
[5] Christensen, supra note 4, at 185.
[6] See Wakeman & Fratcher, supra note 1.
[7] 602 N.E.2d 33 (Ill. Ct. App. 1992).
[8] Note that the Hugh court referred to the grantor’s letters as “letters of direction” as opposed to “letters of wishes.” That said, the grantor’s “letter of direction” served essentially the same purpose that a letter of wishes would have.
[9] Id. at 35.
[10] Id. at 35–37.
[11] Bove, supra note 2 at 40; Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585, 589 (2014).
[12] Both precatory language and ambiguity should be avoided in trust instruments. Trusts with patent or latent ambiguities are subject to having extrinsic evidence used in interpretation. See Koulogeorge v. Campbell, 983 N.E.2d 1066, 1073 (Ill. App. Ct. 2012). Further, including precatory language in a trust runs the risk that the preacatory terms will not be binding on the trustee. See Duvall v. LaSalle Nat. Bank, 523 N.E.2d 974 (Ill. Ct. App. 1988).
[13] See infra § 3(a).
[14] 907 P.2d 794 (Idaho 1995).
[15] See Bove, supra note 2, at 43.
[16] Id. at 43–44 (“Binding instructions on the trustee can interfere with the concept of full discretion and undermine or diminish the opportunity of exercising that judgment. If such instructions are that important and inflexible, they should be included in the body of the trust. . .”); Christensen, supra note 4, at 183–84.
[17] Gordon, supra note 10, at 616.
[18] Christensen, supra note 4, at 183–84. This lack of case law may also be explained by the fact that letters of wishes are likely to be considered non-discoverable trust documents. As such, beneficiaries are unlikely to see letters of wishes unless the trustee voluntarily discloses them.
[19] Id. at 184 (describing how letters of wishes are widely used and that trustees often fulfill their duties as outlined in letters of wishes).
[20] Restatement (Third) of Trusts § 87 cmt. 3 (2007); Bove, supra note 2, at 43–44; Christensen, supra note 4, at 184; Steven M. Fast and Steven G. Margolin, Whose Trust is it Anyway?, SM001 ALI-ABA 187, 199-200 (2006).
[21] Note that some foreign jurisdictions legally require a trustee to consider a letter of wishes in making trust distributions. That said, these jurisdictions do not require the trustee to make discretionary distributions in accordance with the letters nor do the letters create any additional duty for the trustee. Bove, supra note 2, at 41; see also, Anguilla Trusts Ordinance 1994 §13(4); Belize Trusts Act 1992 §13(4); and Niue Trusts Act 1994, §14(4).
[22] Restatement (Third) of Trusts § 87 cmt. 3 (2007); see also Bove, supra note 2 at 42.
[23] Citizens Nat. Bank of Paris v. Kids Hope United, Inc. 922 N.E.2d 1093 (Ill. 2009).
[24] Koulogeorge v. Campbell, 983 N.E.2d 1066 (Ill. App. Ct. 2012).
[25] Stein v. Scott, 625 N.E.2d 713 (Ill. App. Ct. 1993).
[26] Ruby v. Ruby, 973 N.E.2d 36 (Ill. App. Ct. 2012).
[27] 638 N.E.2d 729 (Ill. App. Ct. 1994). However, the court suggested that if the letter, will, trust, and quitclaim deeds had been executed simultaneously, the letter could indicate an ambiguity for which extrinsic evidence could be admitted to determine the decedent’s intent. The Idaho Supreme Court dealt with a similar issue, but decided differently in Matter of Estate of Kirk. 907 P.2d 794 (Idaho 1995). In Kirk, the court allowed a settlor’s handwritten note to be considered for purposes of construing her previously executed trust agreement. Id.
[28] See Fla. Stat. Ann. § 736.0804 (2017) (requiring a trustee to “administer the trust as a prudent person would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.”) (emphasis added).
[29] 152 So.3d 628, 631–32 (Fla. Dist. Ct. App. 2014). Note, however, that the grantor’s letter differed from a standard letter of wishes as it was delivered to the trustee during the grantor’s lifetime pursuant to the trust instrument’s provision allowing her to direct the trust to make payments as requested. Id. at 629–30.
[30] See e.g., Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990) (“[W]hen two or more instruments are executed at the same time by the same parties, for the same purpose and as part of the same transaction, the court must consider and construe the instruments as one contract.”).
[31] Wakeman & Fratcher, supra note 1; Bove, supra note 2, at 38.
[32] Gordon, supra note 10, at 617.
[33] Kritchman v. Wolk, 152 So.3d 628, 630–31 (Fla. Dist. Ct. App. 2014) (describing trustee/defendant’s position that the terms of the trust nullified all of the grantor’s written directives).
[34] See id. at 615 (“These letters, which in general avoid theatricality for simplicity and performance for connection, reinforce the social relationship between writer and recipient without disrupting the estate plan or manipulating the beneficiaries.”).
[35] Unif. Trust Code § 602; see also, Colo. Rev. Stat. Ann. § 15-16-702; Fla. Stat. Ann. § 736.0602(3)(b)(2); Mich. Comp. Laws Ann. § 700.7602; Mont. Code Ann. § 72-38-602; ; N.H. Rev. Stat. § 564-B:6-602;  Ohio Rev. Code Ann. § 5806.02; S.C. Code Ann § 62-7-602; Wyo. Stat. Ann. § 4-10-602.
[36] Parish v. Parish, 193 N.E.2d 761, 766 (Ill. 1963).
[37] Id.; Northwestern University v. McLoraine, 438 N.E.2d 1369 (Ill. App. Ct. 1982).
[38] Robert S. Hunter, § 213:23. Amending the trust agreement, 19 Ill. Prac., Estate Planning & Admin (4th ed. 2016).
[39] Supra § 3(d).
[40] Wis. Stat. Ann. § 701.0602 (2017).
[41] Ky. Rev. Stat. Ann. § 386A.2-020 (2017).
[42] Unif. Trust Code § 602.
[43] Gordon, supra note 17, at 617.
[44] Bove, supra note 2, at 39.
[45] See e.g., Matter of Estate of Kirk, 907 P.2d 794 (Idaho 1995) (describing a conflict between potential beneficiaries over changes in their interests in the decedent’s trust caused by decedent’s handwritten letter attached to a trust amendment).


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For more on Trusts, Grantors and Beneficiaries, see the National Law Review Estates & Trust law section.

The Federal Grand Jury: Ten Tips If You Receive a Subpoena

Other than having to respect testimonial and constitutional privileges of the people called to appear before it, a federal grand jury can pretty much do what it wants in questioning witnesses and compelling the production of documents. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. Federal grand juries have a maximum of 23 members, 16 of whom must be present to form a quorum. Indictments are returned by a vote of 12 or more members. Federal grand juries typically sit for a term of 18 months and meet at regular intervals. As a practical matter, a grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Sol Wachtler’s famous saying that a prosecutor can get a grand jury to “indict a ham sandwich.” Testifying or providing documents to such a powerful body entails grave risks. You should never attempt to face these risks without the help of an experienced white collar criminal defense attorney. Here you will find 10 tips for responding to federal grand jury subpoenas that call for your testimony or documents. Of course, every case is different and you should always develop a strategy in consultation with your attorney.

1. Keep Your Attorney Close at Hand. 

Your lawyer can’t be with you in the grand jury room, but he or she can be right outside the room and you have the right to consult with him or her after each and every question. In fact, you can spend as much time as you need conferring with your lawyer, as long as you are not attempting to disrupt the grand jury process. You can also leave the grand jury room in order to brief your attorney about the questions being asked and your responses. In most federal jurisdictions you can also take notes of any questions asked during the grand jury session. These can later be shared with your attorney.

2. Beware of Agreeing to Pre-Grand Jury Interviews 

You are under no obligation to talk to government agents before the grand jury process begins. Some Assistant United States Attorneys trick unrepresented persons into interviewing with federal agents prior to the beginning of the grand jury session. The letter accompanying the witness’ subpoena may ask or direct the witness to appear an hour or two early at the grand jury room or the U.S. Attorney’s Office. These pre-grand jury interviews are dangerous and ill-advised and the government has no authority to compel them. You may make a harmful admission during one of these interviews. In addition, you may be accused of lying to a government agent during the interview. Lying to government agents during an interview, like lying to the grand jury, is a federal crime. At the grand jury session, however, there will be an official recording and/or transcript of the proceedings, so there will be no dispute about what you say. The pre-grand jury agent interview will not be recorded. Two federal agents will take notes of what you say and it will be their word against yours in the event of a dispute.

3. Don’t be Bullied or Misled About Grand Jury Secrecy. 

Federal grand jurors, grand jury court reporters and the prosecutors running the grand jury are under a strict duty to keep any “matter occurring before the grand jury” a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt charges against a prosecutor. But the rule of secrecy does not apply to federal grand jury witnesses. If you are a grand jury witness, you have the right to tell the whole world about your grand jury testimony. Of course, it may not be in your interest to do this.  You may want to keep your appearance before the grand jury under close wraps. You need to understand, however, that it is your call-not the government’s. But some federal prosecutors attach cover letters to grand jury subpoenas, informing the witness that revealing the contents, or even the existence, of the subpoena “may impede” a criminal investigation. These cover letters then “request” non-disclosure of the subpoena (and/or the documents requested in the subpoena) and ask the witness to notify the prosecutor if the witness has any “problems” with non-disclosure. You should by no means put up with this nonsense. If you receive a cover letter like this, you should consider having your attorney write a polite response to the prosecutor or the case agent including the following language: “Your cover letter requests non-disclosure of the subpoena (and/or the documents requested in the subpoena) and asks to be notified if there are problems with such non-disclosure. I am reluctant to have my client take on a formal affirmative obligation, regarding either non-disclosure of the subpoena or notification of problems with such non-disclosure, beyond the requirements, if any, found in Fed. R. Crim. P. 6(e) or in some other statutory or court authority you can point me to. Rest assured, however, that my client has absolutely no desire to compromise your investigation or to publicize the existence of either the subpoena or your investigation.”

4. Insist on Grand Jury Secrecy from the Government. 

As mentioned, Rule 6(e) prohibits the government from revealing “a matter occurring before the grand jury.” This prohibition, of course, covers the content of grand jury testimony. But it goes much further. The government cannot even reveal that you appeared before the grand jury or that you have been subpoenaed or scheduled to appear. Many prosecutors and agents get sloppy about this and reveal that a person or company has been subpoenaed. In addition, some grand juries have waiting rooms where multiple witnesses are invited to wait until they are called. In these situations, each witness is told, in effect, that the other witnesses waiting with him have been summoned to appear “before the grand jury.” On other occasions, members of the press, who know what day the federal grand jurors meet, have been tipped off to be at the courthouse entrance, so that they can see a grand jury witness enter and draw the obvious conclusion. Your white collar criminal defense attorney should be vigilant in guarding against these abuses and should put the federal prosecutors handling your appearance on notice not to violate grand jury secrecy with such maneuvers.

5. Let Your Attorney Accept Service of the Subpoena. 

Your attorney should arrange with the prosecutor to accept service of the grand jury subpoena on your behalf. This spares you the embarrassment of being personally served by FBI agents at your home or in the workplace. What if the agents don’t know or care that you have an attorney, and decide to serve you personally anyway? You should politely accept service, tell the agents that you have an attorney, and decline to answer any and all substantive questions about the case. Refer all questions to your attorney. What if you don’t yet have an attorney when you are personally served with the grand jury subpoena? Politely accept service and tell the agents that you will decline to answer any substantive questions until you have had the opportunity to obtain an attorney. You are under no obligation to do anything other than accept service of the subpoena. If you say anything at all about the case to the agent you could be making dangerous admissions that may be used against you at a later time. For example, let’s say that you are being investigated in connection with an alleged tax fraud scheme involving foreign trust accounts. Assume that there are no documents which on their face tie you to any such trust accounts. Then an FBI Special Agent (or an IRS Criminal Investigation Division Special Agent) serves you with a grand jury subpoena for all records related to those foreign trust accounts. When she serves the subpoena, the agent asks: “Are you going to cooperate?” You respond: “Yes, I’ll cooperate. You’ll get the documents.” What have you done? You have just admitted to the government that you possess or have access to the foreign trust account documents. You have in effect acknowledged a connection between yourself and the foreign trusts. If you instead respond to the agent as follows: “I’m sorry, but I have an attorney and she will be contacting you,” you have admitted nothing.

6. Learn the Difference Between Types of Grand Jury Subpoenas. 

Federal grand jury subpoenas are for: (a) testimony (ad testificandum); (b) documents or objects (duces tecum); or (c) both. The face of the subpoena will inform you which type of subpoena you received. You will be subpoenaed as an individual or as a custodian of records for a business entity. In many instances, individuals have the right to refuse to answer grand jury questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. Corporations and other business entities, however, cannot invoke this privilege. But since a corporation operates through human agents, it must designate a custodian of records when subpoenaed by the federal grand jury. Under Supreme Court case law the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were searched for and gathered. If you are properly subpoenaed as a business custodian, it is very important that you limit your answers to this narrow category of questions. Prosecutors love to get corporate custodians into the grand jury room and ask extra questions. These questions might seem innocuous, but they are often very dangerous. You need to have your white collar criminal lawyer with you for consultation, right outside of the grand jury room, to ensure that you are not tricked into answering one question too many. Some federal prosecutors have recently started the practice of issuing one subpoena to a person in that person’s individual capacity and his custodial capacity. This tactic is dangerous, confusing, and, in my view, unauthorized. It is tantamount to issuing one subpoena to two persons or companies. Your attorney should insist on two separate subpoenas-one for you as an individual and one to the company’s custodian of records.

7. Don’t Testify if You Have Exposure. 

As mentioned above, if you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. This is true even if you are not a target of the investigation. Keep in mind that even if a prosecutor designates you a witness or subject, rather than a target, this designation provides you with no rights or protection and can be changed at any time. The right to invoke the Privilege against Self-Incrimination is much broader than most witnesses and attorneys realize.  If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer. How can an answer tend to incriminate you? If it furnishes a link in the chain that might lead to your conviction. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty. Why would an innocent person want to invoke the privilege? To keep from being ensnared by a mistaken, incompetent, or unscrupulous prosecutor. Take the following example. The federal grand jury is investigating a corporation for accounting fraud. You work in the corporation’s accounting department. The prosecutor believes that any accounting department employee who reviewed Document X and later booked entries related to Document X is guilty of fraud. You looked at Document X and later booked entries related to Document X, but don’t believe you defrauded or intended to defraud anyone. No record shows that you reviewed Document X and no other person knows that you reviewed Document X, but several documents and co-workers can establish that you booked entries related to Document X. If you testify at the grand jury and truthfully admit that you reviewed Document X, you will tend to incriminate yourself, even though you don’t believe that you are guilty, because you will furnish a link in the chain that the prosecutor may use to indict and convict you.   You also may be able to invoke the Privilege Against Self-Incrimination to avoid producing certain documents. Although documents created prior to receipt of a grand jury subpoena are typically not covered by the Privilege, this is not always the case. If the very act of producing a document would tend to incriminate you, the Privilege will often apply. For example, if you are under investigation for receiving classified documents, and you are subpoenaed for those documents, the very act of producing the classified documents to the grand jury is in itself incriminating.

8. Review Your Prior Testimony. 

Some federal prosecutors like to call witnesses back to the grand jury to testify on multiple occasions. This is dangerous because it can cause you to inadvertently give inconsistent testimony under oath. Under §1623(c) of the federal criminal code, the government can prosecute you for testifying to two irreconcilably contradictory statements under oath, and the government does not even have to prove that either of the statements in question was false. When you are called back to the grand jury to testify for a second time, your attorney should insist on your right to review ahead of time the official transcript of your first session. In this way, you can refresh your recollection as to your earlier testimony, correct any mistakes, and prepare yourself for the upcoming session. The United States Court of Appeals for the District of Columbia Circuit recently ruled that grand jury witnesses, even if they have not been called back to testify for a second time, have an inherent right to review a transcript of their earlier testimony.

9. Conduct a Shadow Grand Jury. 

If you have the money, your attorney can often conduct what is known as a shadow grand jury. Friendly witnesses will sometimes inform you if they have been subpoenaed to the grand jury and you and your defense team can often figure out who else the government may call. Grand jury witnesses are then interviewed, before or after they testify, giving you valuable information on where the investigation is heading. Of course, grand jury witnesses are under no obligation to cooperate with your defense team, and the use of shadow grand juries often infuriates prosecutors. You should proceed with great caution and make sure that all interviews are carefully documented so that your defense team is not accused of witness tampering or obstructing justice. And it should go without saying that your attorney and his staff should conduct and arrange all interviews-not you.

10. Don’t Wait Until the Last Minute. 

Do NOT wait until one day or one week before your grand jury appearance date to contact a federal criminal defense attorney. Any decent attorney will need time to discuss the facts of your case with you in detail and talk to the Assistant U.S. Attorney who is running the grand jury. In other words, your attorney needs time to assess your level of exposure and develop a game plan. This can’t be done overnight. On rare occasions, prosecutors issue “forthwith subpoenas” requiring witnesses to appear before the grand on very short notice. Even in these situations, you should immediately consult an attorney who can advise you on how to proceed. At the end of the day, you may be nothing more than a routine witness, asked to provide routine documents. But federal grand juries exist to investigate, and prosecute, serious crimes. You could be stepping into a mine field. Don’t go it alone and don’t wait until the last minute to seek professional help.

Copyright ©2019 Solomon L. Wisenberg
This article was written by Solomon L. Wisenberg of Nelson Mullins.
For more on appearing in court & litigation, please see the National Law Review pages on Civil Procedure or Litigation & Trial Practice.

Why the Billable Hour Is Here to Stay

While you may grind away on files day in and day out through six-minute intervals, tracking the time can prove distracting and burdensome. The billable hour remains the standard method for billing with lawyers, and this has been the standard for decades. Despite the longevity of the billable hour, plenty of lawyers believe they can find a better way to bill their clients.

The Argument Against the Billable Hour

Lawyers from a variety of fields have raised arguments against billing by the hour. One of those arguments is how you only have so many hours in the day that you can work. In addition, an hourly billing setup fails to acknowledge how different legal services will have differing value. Some have made the claim hourly billing encourages inefficiency and incompetence because the longer it takes a lawyer to finish the job, the more they get paid. This shows a conflict of interest because a lawyer might feel tempted to spend the maximum hours on a file.

Does the Billable Hour Remain the Standard?

Gradually, lawyers have started to charge through alternative methods. Some of those methods include:

  • Flat fees

  • Results-based fees

  • Contingency fees

  • Fees by stages

In today’s world, a client asks more value for his dollar, and plenty of lawyers are happy to accommodate. Still, the billable hour reigns supreme even despite talk of a massive shift. The billable hour hasn’t taken hold as of yet. However, it has been growing. In fact, a recent study found how the alternative fee arrangements were up five percent from several years ago to 22 percent since.

Revolutionizing the Law Industry

Plenty of firms have seen this and started to shift their own law practice out of the curiosity of what a billable-hour free firm might look like. Since the early 1990s, lawyers have predicted the eventual end of the billable hour, but it has never truly ended. Until a more alternate billing comes, it’s unlikely that the billable hour will ever fully go away. In fact, some law firms will always prefer it, and unless the clients demand a change, the billable hour serves both lawyers and clients in a way where an alternative arrangement might prove to be more difficult.

Education of the Client

Bill Rice, a partner at Bennett Jones, says that his national firm offers the alternate billing proposal. Many times clients will ask for the alternate billing, but in the end, they wind up choosing the hourly billing because they don’t know how to judge if the alternate arrangement will be fair. Rice says, “While we’ve moved forward with breaking the billable hour, we still haven’t reached the appropriate level of comfort with alternate billing.” Essentially, clients are unable to find a better way to judge the value or to maintain control over it.

This is where research comes in play. If you decide to want to take an alternative route, education is key. By explaining the process, average cost, and the highest potential cost, your client can decide which avenue he or she may want to take.

Where Alternative Billing Does Best

In some cases, the billable hour continues to be the best fit for the attorney and/or law firm. This includes the markups and discounts and how much time a lawyer puts into the case. Sometimes blended rates come into play due to work getting divided amongst the firm. In these circumstances, you will experience a blend of hourly rates.

Where fixed-fee billing (say that five times fast) works best, might be when an event an activity is scheduled. Some of the possible examples include:

  • Patenting

  • Immigration visa

Fixed-rate billing also allows an attorney to exit a case with less worry. Sometimes with the billable hour, there’s that worry of a possible lawsuits malpractice. When you lay everything on the table, the client knows what he’s getting himself into. As a result, you have a more satisfied group of clients because they feel they got the value out of what they paid for.

The Problem of Efficiency: The Billable Hour

You could spend up to an hour trying to fix a leaky faucet and getting nowhere in the process, even though the problem is fairly simple. The same could be said about the billable hour. You want to provide attorneys with some incentive on why they should work hard to finish the case fast. It’s true that some of the other billing methods might not necessarily be cheaper than the billable hour, but it gives clients a fixed budget to work with and peace of mind knowing it won’t go higher.

The billable hour isn’t likely to go anywhere in the future. New methods of billing will, however, probably come up as lawyers get more creative on how to bill their clients for their legal services. The world today focuses more on value-driven legal services. For that reason, it seems like a good incentive to provide lawyers with a reason to up the quality of their services while giving clients predictable budgets they can count on to stay the same.

This post was written by Jaliz Maldonado  of PracticePanther © Copyright 2017
For more legal analysis go to The National Law Review

Attorneys: A Common Interest Agreement May Not Be Worth the Paper It’s Written On

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the “common interest doctrine” that extends the attorney-client privilege to discussions with parties that share a common interest. Under the doctrine, the attorney-client privilege is not waived when such communications are made between parties sharing a common legal interest.

In Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 (2016), the New York Court of Appeals expressly limited the application of the common interest doctrine to “co-defendants, co-plaintiffs or persons who reasonably anticipate that they will become co-litigants.…” In doing so, the Court of Appeals clarified that the policy underpinning the doctrine was to enable two or more parties to coordinate a common claim or defense without fear that such efforts might later become the subject of disclosure.

Despite the frequent use of common interest agreements, there are limitations that may vitiate the privilege entirely and leave communications unprotected and discoverable to the other side. In applying the holding in Ambac, a New York County Supreme Court judge recently ruled that the common interest doctrine did not apply to communications between counsel where one party assigned claims to the other.

In 59 S. 4th LLC v A-Top Ins. Brokerage, Inc., 2017 N.Y. Slip. Op. 30050[U] (Sup. Ct., N.Y. County, Jan. 10, 2017), an owner of a residential development project initiated a lawsuit against an insurance broker, alleging that the broker had misrepresented the scope of work the general contractor could undertake with its current insurance. In addition, the owner obtained an unconditional assignment of any potential claims the general contractor may have possessed against the broker regarding the procurement of insurance. Subsequent to the assignment and during the litigation, the plaintiff owner and (non-party) general contractor entered into a “common interest agreement” before entering into a series of discussions. That agreement contemplated that certain communications between the owner and the general contractor would be privileged and confidential. When counsel for the broker sought production of those communications, the owner refused to produce them citing the common interest doctrine. The broker then moved to compel.

In granting the broker’s motion, the Court reaffirmed the limited applicability of the common interest doctrine as set forth by the Court of Appeals in Ambac. The Court reasoned that, because the assignment completely divested the general contractor of any interest it may have had in the outcome of the litigation, the general contractor could not – by definition – become a co-plaintiff in the action. As a result, the entirety of verbal and written communications between the owner and general contractor were deemed not privileged and subject to disclosure to the other side.

Following the holdings in Ambac and 59 S. 4th LLC, any lawyer considering entering into a common interest agreement should be mindful that these agreements are not automatically upheld. Instead, careful practitioners must confirm whether their situation meets the requirements set forth in Ambac above, or they, too, may see their private communications deemed unprotected.

© 2017 Wilson Elser