As Seen Online: The Dangers of Do It Yourself Lawyering

            Recently, I caught up with a friend who is a former lawyer (if one can ever truly become a “former” lawyer). Having since moved on to other ventures, he began to reminisce about past cases and past clients. His greatest frustration, he confided to me, was having a client contact him after the client's problem had become too far gone to be salvaged. Often, this was because clients were hesitant to spend the money to hire a lawyer at the outset, instead attempting to deal with problems on their own.

            As an example, he told me of a particular client who had attempted to publish a book without first seeking his advice. The client was subsequently sued over some infringement issues that could have easily been avoided on the front end, and my friend found himself in a position of trying to mitigate, rather than trying to eliminate damages for his client. When the client asked why my friend could not absolve him of all responsibility for what he had done, my client’s honest answer was, “because you acted before you came to me.”

            Lawyers are problem-solvers. It’s in our DNA. It’s a skill we are taught in law school and that skill is sharpened each day we practice. It can become an all-consuming urge that we apply to situations we shouldn’t. It drives our spouses crazy and it causes communication disconnects with non-lawyers. But we are also problem-avoiders. In fact, contrary to popular belief, most of what lawyers do is designed to help our clients avoid problems in the first place, rather than to “bail them out” later.

            Unfortunately, life is messy. Conflicts happen. Drivers crash into other drivers. Contracts are breached. Marriages fail. And when those things happen, people call lawyers to help solve their problems. People seem more hesitant, however, to think about calling your lawyer to avoid problems before they arise. But you should do just that. It will cost you far less in the long run. Below are some common ways people cost themselves more because they try to save on the front end by not consulting a legal professional.

#1: Using Cheap Online Estate Planning (Wills & Trusts) Forms

            These forms are easily available online. When faced with the possibility of getting a free or cheap Will online or paying a legal professional to do it, the temptation of the free form is undeniably strong. After all, you tell yourself, you end up with a Will either way, right? Well, yes. You will have a Will. And heaven help you if that Will is contested. Consider the following:

§   The identity of the person(s) who drafted the Will forms you find online is usually not apparent. They could have been drafted by anyone.

§   It is a commonly held belief that estate planning is for the wealthy. But people of all economic levels benefit from a Will drafted by a qualified legal professional. A Will is designed to distribute your property to your beneficiaries with as little tax consequence as possible. Lawyers with extensive legal education provide the best advice on the distribution of an estate.  As for those who have few assets, there is a heightened importance of making sure that every asset is distributed as intended.

§   There are numerous rules to estate disposition, and every state has different rules. The online form you choose may have been drafted for North Carolina, Kansas, or California. An online Will, available to residents of Tennessee, may not include the specifics that are needed here.

§  Not only does your Will need to be written properly, there are very specific rules on how it must be executed. This service is already provided at an attorney’s office, so you do not have to worry that improper execution will invalidate your Will.

§  If your Will is challenged after you are deceased, the lawyer who helped you create it can attest to your intent and your state of mind at the time of execution. The fact that you created your Will in the presence of, and with the aid of, a legal professional, is solid evidence of your true intent.

            So yes, you can get a Will online at little to no cost. But the more relevant question is whether or not you have a solid Will that does its job after you die. If you choose not to work with a legal professional in disposing of your estate, you open up the possibility of causing problems after death that your Will was supposed to eliminate for your heirs. And you also eliminate that peace of mind that the Will was supposed to provide you in the first place.

#2: Attempting To Start A Business

            What business format is best suited for your particular situation? Which format helps you best achieve your long term goals? What does the language in the various business creation forms mean? Will it have an unknown effect down the road that prevent you from accomplishing your business objectives? Do the provisions on the form apply in your state? It is best not to find out the answers to these questions when problems arise. A lawyer can tailor the forms exactly to your needs and help you avoid costly, even disastrous, problems down the road. Again, this is an area where online forms are easily available, but should not be counted on to properly meet your needs as an entrepreneur.

#3: Attempting To Execute A Quitclaim Deed

            Quitclaim forms are easily accessible and fairly easy for anyone to execute. But they are not ideal for all real estate transfers. Furthermore, they often come with unforeseen implications. When transferring real property, it is always best to consult with a lawyer who knows real estate. And even if, after discussing the desired transfer with your lawyer, you decide a Quitclaim Deed is the best option, it is best to have that lawyer assist you in the creation of the deed and with the filing of that deed.

#4: Entering Into Contracts

            Boilerplate contracts are easy to find online. But few situations requiring a contract are one-size-fits-all. Again, the question arises as to which state’s laws apply to your contractual arrangement and how do they relate to the boilerplate language in the form? What are the implications of that language? Which party bears the responsibility of loss, for example, if a piece of real property is destroyed after contracting for it, but before closing? In a sales contract, which party bears responsibility of the loss while a good is in transit? What are the obligations of each party going forward? These are important questions, among many others, that should be addressed before any contract is signed. The language of your contract should be read and interpreted by a professional before entering into any contractual arrangements.

#5: Power Of Attorney

            Many people deal with a POA at some point in their lives, either by agreeing to become an Attorney-in-Fact for a loved one or by having another do so for them. Many who enter into a POA arrangement do not understand exactly which powers are being transferred. Which powers can be granted and which powers can be retained? How will the powers the Grantor decides to grant be granted and how can those the Grantor decides to retain be retained? What do those powers mean? How does your situation relate to these powers? In what situations are these powers transferred and in which situations are they retained? Reliable answers to these questions are requisite if one is to make informed decisions with regard to the creation of a sound Power of Attorney document. Once these answers are obtained from a lawyer, and once the resulting decisions are made, that lawyer can craft a personally-tailored Power of Attorney document that achieves your wishes and puts your mind at ease.

            Bottom line, your lawyer’s greatest skill set is his or her ability to prevent you from incurring problems before they arise. But you have to give that lawyer a chance to do so. If you are looking to plan for the dispensation of your estate, start a business, or have a real estate need, I hope you will consider giving me a call to put you in the best position to achieve your goals and avoid problems down the road.

Houston Akin, The Maloney Law Firm, 615.627.3845.