In her presentation at the Heckerling conference, “You Mean I Can’t Bribe the Coach? Modern Ethics Issues You Didn’t See Coming,” Lauren J. Wolven of Levenfeld Pearlstein LLC discussed the importance of embracing cultural competence when dealing with clients. She pointed out that you don’t always need to agree with clients’ lifestyle choices, but you should be culturally aware and understand the personal and cultural issues your client embraces. The more you know about your clients, the better you’ll be able to serve them.
Wolven urged the audience not to make any assumptions about a client. Family dynamics have changed dramatically over the years. For example, practitioners in the past may have assumed that women can’t handle financial affairs, so would add a co-trustee for a wife but not for her husband. This type of thinking is no longer acceptable.
Also, if the clients have children, don’t assume that both parents are biological or that one or the other is the biological parent.
Clients or their beneficiaries may be LGBTQ and have alternative pronouns they want you to use when referring to them.
The best way to learn as much as you can is to ask the right questions through the use of a detailed client questionnaire.
Practitioners should use proper terminology when drafting documents to reflect the reality of modern, nontraditional families. She warns against using “qualifiers” when describing parties. For example, don’t say “adopted son,” just say “son.” And avoid judgments. Don’t say “real parent,” say “birth parent.” Don’t use the term “sexual preference” because this makes it sound like a choice the client is making; use “sexual orientation.” If you use boilerplate language in your trust, reexamine to make sure it now uses modern terminology. The pronoun “they” is now an acceptable way to refer to an individual.
Secret Second Families/Relationships
Wolven has also heard of situations in which a married client has a secret second family or a girlfriend or boyfriend on the side. If you know about the other relationship, proceed carefully. If the client has instructed you to keep it quiet, address this in the engagement letter and make it clear that you’re not representing the spouse. You don’t want to commit fraud on the spouse. What if a married client asks you to assist him in preparing a prenup for another relationship? Let the client know that you can’t assist him in criminal or fraudulent conduct, so you can’t handle the prenup. Also, advise the client that he’s committing a crime by entering into a second marriage while he’s still married to his first spouse.
For more information relevant to this offbeat but fascinating topic, check out Trusts & Estates board member Kim Kamin's recent appearance on The Dead Celebrity podcast.