The Elastic Power Of Attornies*

While academics are trying to resuscitate the future of law zombie, Richard Susskind, despite his having suffered the brutal demise of having been right about nothing since his singular glory of predicting email would someday be accepted by lawyers, practitioners are still struggling with the notion that ethics and competency can survive.

Briefly, the sad facts. The lawyer who is the subject of the ethics decision is a solo practitioner serving the Polish community in Chicago. Client walks into the lawyer’s office, and asks the lawyer to draft a power of attorney and quitclaim deed. The client explained that his friend was in the hospital and wanted to give the client his house and property. The lawyer – without speaking to the client’s friend or investigating the friend’s competency – drafted the documents and charged $200.

“Briefly” may be an overstatement. There’s more.

It’s not hard to guess what happened next: the client subsequently took the documents, forced the friend to sign them in front of a notary – and subsequently depleted the bank accounts and took possession of the house contrary to his friend’s wishes. The client’s fraud was discovered by the friend’s doctor who reported the matter to the Public Guardian’s office (PGO). The PGO filed suit to recover the house and brought a malpractice action against the lawyer, which yielded an $80,000 settlement.

To recap, lawyers did something incredibly stupid, got nailed, earned $200, lost $80,000. And then, wait for it, got reprimanded for it, but with a dissent.

I believe my colleagues’ opinion will have negative and far-reaching ramifications beyond this matter. If a client asks a lawyer to prepare a power of attorney for the client’s mother or father, must the lawyer investigate and determine whether the client’s parent is competent to give power of attorney?

Before getting to the answer to this question, why raise it?

I also am concerned that the majority’s ruling will spell the end of affordable powers of attorney, and possibly even lawyer-prepared powers of attorney. Lawyers will be loath to take on potential liability if they are held responsible for their clients’ actions.

There you go. If we expect lawyers to be ethical and competent (yes, of course the lawyers shouldn’t have been complicit in a fraud by doing the papers), it means they won’t be able to glom up that cool $200 fee. What about the poor people who need shitty, unethical lawyers at a really cheap price?!?

As Carolyn Elefant notes, this could well drive people into the arms of LegalZoom for their $9.99 Power of Attorney form, and starve the poor, unethical, incompetent schmuck for lack of his $200 fee. Is that what we want to see happen?

No, but yes. This is a crossroads questions in the future of law that academics gloss over in the idiot’s rosy language of feelz. Is it better to enable $200 lawyers to provide unethical, incompetent services or to deprive those who want cheap legal services of the complicity of bottom feeders?

Carolyn’s perspective is to promote the interests of the starving solo. And what she sees is $200 being lost to the solo and going toward LegalZoom forms and a mocha frappuccino instead. I get her point. Solos need to earn a living or they disappear. People too cheap to pay for competent legal services will turn to form sellers rather than lawyers. It’s a lose-lose.

But it’s crossing a line as well. Once the need to make some moolah becomes more important than the necessity for ethical and competent services, lawyers become laundry detergent rather than professionals. Once people are told that mad-libs is a totally acceptable substitute for competent and ethical legal advice, that’s the game they’ll play.

There is no guarantee that lawyers can earn nickels and dimes doing shoddy work, and there is no question that what happened in this case was that a lawyer blew it and deserved to be spanked good and hard. There is similarly no guarantee that the poor and the cheap are entitled to the full panoply of legal services at whatever they can pay, or feel like paying. And lest we shed a tear for the A2J crowd, cheap and incompetent isn’t really as huge a benefit as the academics want to pretend it is.

There are alternatives to expensive “bespoke”** legal representation. I’ve offered my ideas. The State of Washington glommed onto them without so much as a hat tip, but that’s okay. But the key here is that it puts no cash in the solo lawyer’s pocket.

It’s not that I have anything against lawyers making a living. Indeed, I’m a big fan of it. But not at the expense of ethics and competence. There is no future of law if it means that lawyers can suck and make a buck. Of all the options, including the Zoombies, this is the worst and least acceptable.

If the demand for ethical and competent legal representation is not so elastic as to allow for payment to lawyers of a viable fee, then there is no reason for lawyers to exist. Maybe LegalZoom forms are the best answer, as bad an answer as they may be. If people prefer cheap mad-libs to lawyers, then they’ve made their choice.

*No, this is not a typo. This was intentional. My humor and irony are totally wasted in the internet.

**This word is used to convey the impression that legal representation is really just a commodity. It’s not.

35 comments on “The Elastic Power Of Attornies*

    1. SHG Post author

      You should consider what they taught you either second semester, 1L or 2L, whenever professional responsibility was given. It goes a bit deeper.

      Reply
  1. Ross

    I do not understand how Elefant and the dissenter can rationally argue that requiring ethical behavior by attorneys should be sacrificed because it might make legal services less affordable. Aren’t those two separate issues?

    More concerning is their inability to recognize that writing a power of attorney, or any other legal document, in the name of someone you’ve never met requires confirmation that the person is capable of understanding the purpose and ramifications of the document. I am not a lawyer, but that requirement seems pretty obvious.

    Reply
  2. Dillian

    You’re conflating competence and ethics. The attorney was obviously competent because the assets were transferred to his paying client, but ethics! This all smells like Know-Your-Customer stuff, which makes banks agents of the police because of ethics. The police tried to force FedEx into the same position regarding packages of illegal drugs. They also tried to force gun manufactures into the same position regarding the use of guns in committing crimes. Now, attorneys have to be a cop too!

    Reply
    1. SHG Post author

      Ethics and competence are distinct issues, both involved here. Competence isn’t limited to writing a viable POA. That’s easy. Competence includes ascertaining the client’s needs in the doc, determining if it’s the proper means to achieve those needs, and making sure the doc is crafted to fulfill the client’s needs.

      And this doesn’t make lawyers cops. It makes them lawyers. We don’t sell guns or deliver packages. We are professionals and have a responsibility beyond selling widgets to fools and thieves, a concept that apparently is meaningless to far too many.

      Reply
    2. davep

      Dillan: “The attorney was obviously competent because the assets were transferred to his paying client, but ethics!”

      The “client” is the person the power of attorney is being transferred from. The person being granted the power of attorney is intended to be an agent of the “client”.

      A power of attorney that is a license to steal really isn’t a power of attorney.

      Reply
  3. EH

    I’m with the dissent on this one. Drafting documents without evidence of fraud shouldn’t be sufficient proximate cause to peg the attorney for liability.

    The perp decided to lie, and to force the principal to sign documents, and then to steal the stuff. think of the CD equivalent: does the car salesman bear fault for a getaway? Does the person who introduces people hold liability for a rape?

    Reply
        1. SHG Post author

          I have significant issues with that as well. The trend is trade off responsibility for a quick buck and a cheap draft. What could possibly go wrong with that RICO complaint after the lawyer is paid and the client happily strolls to the courthouse?

          Reply
  4. Ehud Gavron

    Having read all the comments thus far, I think the question really comes down to “who is the client?” In my mind when I walk into a lawyer’s office and ask for a document that says X and pay for the document that is prepared to say X, I am the client.

    The lawyer’s job is to represent me, not the nine billion other people on this planet to whom I may give, offer, share, or otherwise entice with this document.

    In the discussed case someone PROVIDED AN INSTRUMENT TO DEFRAUD, and someone SIGNED it and someone NOTARIZED that signature. I think penalizing the guy who drafted the document that was thus signed and notarized is moving the responsibility from those who did bad (fraudster), those who aided (notary), those bereft of judgment (the signer) and giving it all to the guy who did his job.

    Dissentingly,

    Ehud

    Reply
    1. SHG Post author

      This is one of those comments I struggle to decide whether to post or trash, and I frankly can’t figure out why you felt compelled to write it. You have no clue what this is about, and your comment is fundamentally and dangerously simplistic and misguided. But, I’ve decided it might be better to explain this to you (and others) than just trash your comment.

      Docs serve purposes, involve different rights and have different impacts. It is not: I came, I paid, I’m the client, do what I tell you to do.

      Imagine someone coming to a lawyer for a will. Not his will, but his uncle’s will. He tells the lawyer that the uncle wants to leave everything to him, here’s the money, draft the will. What about the uncle? Not to worry, it’s all good with him and, since he’s in the hospital, don’t worry about execution, he’ll take care of it. Now just do the will, lawyer.

      The will is an operative document for the testator, the guy who is bequeathing stuff in the will, not the beneficiary, the guy who told the lawyer what to do and paid him. The same is true of a power of attorney, where the power is given by the person signing and not the beneficiary of the POA. The lawyer isn’t a mouthpiece for the person paying. The lawyer has a responsibility not to harm the person whose rights are being impacted by the document he is creating.

      Don’t be hurt by my characterization of your comment. Too many lawyers don’t grasp what professional responsibility means, so it’s no surprise that non-lawyers can’t grasp it either.

      Reply
      1. Hunting Guy

        I have a question. I’m not paying you anything so I don’t expect an answer.

        Doesn’t the notary bear any responsibility in this?

        Reply
        1. SHG Post author

          The notary’s job is to guarantee that the person named is the person executing, not that they are doing so voluntarily. Notaries aren’t a big deal.

          Reply
      2. Erik H

        The lawyer shouldn’t do it in many cases because it’s not ideal practice. I don’t, at least for POAs and wills (it’s pretty common for a buyer to ask for a deed, actually).

        But “shouldn’t do it” and “liable for damages or license loss” are not the same.

        Reply
        1. SHG Post author

          Disciplinary rules are the floor of ethics, below which the conduct was so bad that it resulted in discipline and potential liability. Would it really kill lawyers if they did better than “shouldn’t do it”? Is it good enough that a lawyer can get away with it without discipline? Is that what you aspire to, “I made $200 and didn’t get disbarred today!!!” Is the goal of a young lawyer today to see how much crap he can get away with?

          By the way, how do you know it’s the buyer? It’s one thing to prep a deed in a legit transaction, but for a random person who walks in with $200 in his pocket? How do you think all those people who stole houses by filing phony deeds managed to do it?

          Reply
          1. Charles

            Isn’t the problem with the POA, not the deed per se?

            There might be a legitimate need for a client to request that their lawyer draft a quitclaim deed for another party to sign. A lawyer might be justified in drafting that document without extensive research of the client’s situation.

            But a POA, like a will, inherently is personal to the signor of the document. The signor is the only conceivable “client” no matter who requests or or pays for it.

            Reply
            1. SHG Post author

              While there are obviously differences between a POA and deed, I guess the point is more clearly made by saying, “when someone asks for something weird and abnormal, and potentially subject to abuse, just check it out and make sure it’s legit.” I think this tiny bit of extra lifting isn’t too much to expect of an ethical and competent lawyer.

            2. Charles

              davep, I said that there “might” be a legitimate need. I didn’t say that it automatically would be legit. As this seems legit, try 123 Simple Justice Way, Caveat Emptor, New York.

            3. davep

              Charles: “I said that there “might” be a legitimate need.”

              Against your hypothetical and unspecified “legitimate need”, we have an actual illegitimate need.

              A quitclaim is “inherently personal” to the actual owner of the property (just like the POA).

              The only case that a client could legitimately ask a lawyer to draft a quitclaim for another party is if the client is an agent of the other party (just like the POA). Otherwise, it’s stealing.

            4. Charles

              davep, what if I want to sell you my house at 123 Simple Justice Way and the boundary line with Scott’s, I mean my, neighbor is unclear?

              The neighbor might not want to hire a lawyer for me to be able to sell my house. So, I might have my lawyer draft a quitclaim deed that addresses the issue. In this scenario, the client is me, the person who requested and paid for the document, not the person signing.

              However, if I come asking for a POA, with or without the deed, I can’t imagine a scenario in which the client is anyone other than the signor of the document, no matter who requested it or paid for it.

              In other words, as long as there is a POA involved, the majority was right. Without the POA, maybe the dissent is right. Maybe.

              Now pay up before Scott gets home.

            5. SHG Post author

              Easier test is when it’s outside the norm of commonly accepted practice, inquire. Could be legit. Could be bullshit. Figure it out. Just don’t glom the dough and do the deed with your eyes shut.

            6. davep

              Charles: “The neighbor might not want to hire a lawyer for me to be able to sell my house. So, I might have my lawyer draft a quitclaim deed that addresses the issue. In this scenario, the client is me, the person who requested and paid for the document, not the person signing.”

              ????

              It’s not usual practice (it seems rather weird).

              Regardless who is paying, the quitclaim isn’t for the buyer. It’s an instrument for the property owner (the seller).

              The fact that the buyer is paying for it doesn’t magically allow the buyer to take away the basic rights of property ownership that the seller has.

            7. Charles

              davep: “The fact that the buyer is paying for it doesn’t magically allow the buyer to take away the basic rights of property ownership that the seller has.”

              You’re not understanding the hypothetical. And now you’re going to get me kicked off Scott’s lawn.

              (whispering quickly before host notices like an angry prof)
              A owns Whiteacre. B owns Blackacre. A and B have been neighbors for years, get along just fine, and have no dispute over where the property line is. A wants to sell Whiteacre to C. Turns out, the property records are unclear. C won’t buy because C’s bank won’t give a mortgage without fixing the property records.

              So, A goes to his lawyer and asks for a quitclaim deed to be signed by B. While the lawyer should review the property records and a survey, the lawyer owes no duty to B and doesn’t need to talk to B. A takes the document to B, B signs, and A completes the sale to C.

              Unusual? Yes. Requires investigation? Yes. Any duty or client relationship with B? No.

              Back to the current facts: A goes to his lawyer and asks for a POA to be signed by B. B is the “client”. A is just an agent for B. While they didn’t describe it in those terms, that’s effectively what the Review Board did, imposing all of the duties of an attorney-client relationship:

              “Because we find that Respondent owed the same duty to Mr. Muskala that he would owe to a client, we also find that he violated the Rules of Professional Conduct as charged in the First Amended Complaint by failing to determine whether Mr. Muskala had the mental capacity to knowingly appoint Mr. Zabielski as his agent under a power of attorney, or whether he wished to have Mr. Zabielski act as his agent; failing to discuss the power of attorney with Mr. Muskala; engaging in a conflict of interest by representing Mr. Zabielski while owing a conflicting duty to Mr. Muskala; and allowing Mr. Zabielski to direct his professional judgment in rendering legal services for Mr. Muskala.”

              My point is that the POA was sufficient to reach the result. The deed wasn’t the central issue. Note that the Review Board doesn’t even mention it specifically in the above passage.
              (back to normal volume)

              No, sir. Nothing important. Sorry, sir.

    2. davep

      Lawyers are supposed to put at least a little thought into what they do. Otherwise, lawyers would be superfluous.

      The lawyer isn’t really allowed to enable you to defraud any of those other 9 billion people even if it’s something you really want to do.

      Notaries do nothing more than witness and document signatures. It’s quite bizarre that you think notaries are obligated to be smarter than lawyers.

      Reply
  5. Matthew S. Wideman

    My Agency and LLC professor once said to my class…..”Agency is like the rule of perpetuities, very few attorneys really think about it in their day to day practice or how it could get them in trouble”. I was with the dissent there for a moment. Then I realized this was a prime example of agency-principle law, as one of the commentators pointed out. I am glad I read this article, because I could easily see myself preparing a POA and quit claim deed for $200.00, and not thinking about the consequences.

    I am sure my professor is showing this article to a 2L class right now. Every time a law professor is right….an angel gets his wings.

    Reply

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