Attorneys Profiteering or Serving the Public?

Every law student invests in his or her education with an eye toward providing for the future. Lawyers, however, are also called to serve the public. Regent University School of Law lives by an important motto: Law is more than a profession; it's a calling. See how significant this motto is to Regent Law at http://youtu.be/w_kmwqNfsQc.

The concern that attorneys may take advantage of client payment for services was addressed by Elizabeth A. Escobar, Regent Law Juris Doctor 2012, in her recent research on estate distribution. Escobar has written an excellent article on the legal opportunity to be paid twice in an estate matter. She is not pleased that attorneys take advantage of legal loopholes for their own self interest and private benefit.

In her article "Making Out Like Bandits," Escobar writes, "A West Virginia attorney lost his license to practice law as a result of his participation in the preparation of three wills, among other things, where he named himself as executor of such wills. Attorney John Patrick Ball named himself as the executor in the wills of two clients and accepted $1.6 million in executor's commission. The two wills provided he be paid an usually large percentage (seven and one-half percent) of the gross estate as his commission as executor. Ball also drafted and named himself as the executor of Mr. Earle Elmore's will, who was 94 years old at the time the will executed. In Elmore's will Ball provided that he was authorized to receive seven and one-half percent of the total gross estate, which was $1,388,579.00, for executor's compensation. The court ultimately found that Ball's conduct violated the duty he owed to his clients by charging excessive fees, drafting wills which leave bequests for himself and his wife, and assisting in making his sons beneficiaries to the client's annuity. Ball provided for a commission in his clients' will that was outside the statutory default rate thus violating his fiduciary duty to his clients. This article would argue that even if an attorney, acting as executor of a will he or she drafted, accept the statutory rate of compensation he or she would still be putting the elderly client's best interest at stake."

This article explores the problem in Virginia, whether Virginia statutes adequately protect testators by allowing the drafting attorney of a will to be named as the executor of the will. Escobar discusses how the statue implies and encourages a conflict of interest that harms the elderly client. Section I provides background on the historical conflict that an attorney will face when he or she names himself or herself as the executor. Section II examines and explores the meaning behind the statutory language of “reasonable compensation” and how this language encourages a conflict of interest. Section III offers suggestions that can make this practice less controversial to the client and attorney alike.

Relating this concern to Virginia law, Escobar adds,"Currently Virginia statutes do not provide adequate protection for the elderly who name their lawyers as the executor of their wills. Current application of statutory language allows an attorney to individually decide what percentage of commission to which he or she is entitled by clever use of language in the will, directly inhibiting the attorney to act as fiduciary for the elderly client. This financial conflict of interest drastically impairs the attorney's ability to render impartial legal advice to the elderly client." Read her entire article here.

Lawyers protecting and serving the public is critical to the individuals and families relying on those lawyers, and critical to the respect of the legal profession. Law is more than a paycheck; it is more than a profession; it's a calling.

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