Risk Factors in Choosing Attorneys

by
Arthur Fish, B.A., LL.B., B.C.L. (Oxon.), S.J.D. (Toronto)
Director, Wealth Management Practice Group
Borden Ladner Gervais LLP (Toronto)
This short article is intended to help advisors assist their clients in choosing reliable Attorneys

for Property. Its main goal is to inspire discussion. Many people choose attorneys without any

regard for how well they are likely to perform. Such people are usually motivated primarily by

the desire to avoid upsetting a child or close relative by refusing them a position of honour. Yet

it is likely that the person who is most likely to be upset in this way will make a poor attorney:

the person who needs authority over another as a badge of self-worth, is likely to fail to grasp

that an attorney’s primary obligation is to faithfully serve another person. When pressed to

explain how they think their attorneys will make decisions, people who appoint on the honour

principle often prove to be acting on false assumptions. Many of these people assume that their

attorneys will simply act as the grantor would have had he or she remained capable, or that the

grantor will be so near death when the attorneys begin to act that the attorney’s conduct will be

of no moment. The hope is that offering people examples of characteristics that have led

attorneys to perform poorly, will bring home the significance of the decision and inspire them to

think more carefully and broadly about whom they should appoint.

The list is in every respect far from scientific, and should not be given more weight than it

deserves. The list was compiled from two main sources. An initial list was drawn from a review

of reported Canadian cases in which attorneys were severely criticised, held liable for

misconduct or removed from office. This list was then supplemented by anecdotal reports from

experienced estate practitioners (both litigators and solicitors) and in-house counsel who work

for businesses in the financial services sector. This negative approach was taken of necessity:

there is no collection of reports on exemplary attorneys, and no incentive to identify the personal

characteristics associated with success as an attorney. If any reader is aware of other factors that
should be added to the list please email them to afish@blgcanada.com. All contributors will be

acknowledged, and the list will be regularly updated and re-circulated as widely as possible.

How to Use the List

Choosing an attorney for property or personal care is a complex matter, especially if it involves

selecting among cherished family members or relatives – or taking account of conflicting

interests and needs within a family (e.g. tensions between the children of a first marriage and

their step-parent.) There is no algorithm for choosing an attorney because the quality of an

attorney’s performance turns in large measure on the needs and expectations of the individual

grantor, and because there is no simple way to predict how a given individual will act once in

office. I therefore suggest having clients approach decision making in the following way:

2. Review the negative list and identify three qualities that he or she most wishes to avoid.

3. List three to five qualities he or she considers most important in making decisions about the
management of his or her property.

4. List three to five qualities he or she would apply if acting as an attorney for property for
someone else.

5. List the people whom he or she is considering appointing as an attorney.

6. Identify how many of the positive and negative qualities each candidate possesses.

Attributes of Failed Attorneys for Property

Dealing with third parties:

1. Unwillingness to cooperate with health care providers or financial advisors (e.g. meetings

cancelled, rudeness.)

2. Unwarranted distrust\paranoia with respect to professionals.

3. Egotism: no one else is permitted to be right, cannot acknowledge areas in which he or she

lacks expertise.

Patterns of Negative Behaviour

1. Selfishness or dishonesty in dealing with others

2. History of addiction (drugs, alcohol, gambling)1

3. Mismanagement of his\her own property (bankruptcy, excessive spending)

4. Frequent disputes\pattern of emotional disconnection in business or personal relationships

Comment: Close relationships may enhance loyalty: distance\quarrels suggest inability to

understand what is entailed in a fiduciary relationship.

Negative Personal Characteristics:

1. Rebarbative personal style: argumentative, sarcastic, threatening, belligerent

2. Rigidity: inability to understand – and accept2 - the Grantor’s approach to

life\family\business where it differs from the attorneys.

3. Martyrdom\guilt: Attorney will not seek assistance or delegate appropriately out of a

misplaced sense of guilt or obligation or a need to prove their devotion.

1
With thanks to Shelley Hobbs.
2
With thanks to Richard Austin.
4. Entitlement: immature person who has difficulty acknowledging and serving others’

interests.

Objective Circumstances

1. History of ill health (physical or mental) likely to render the Attorney incapable of acting

when needed.3

2. Conflicts of interest (the phrase is here used in a broad sense to cover a range of

circumstances that may tempt or motivate the Attorney to advance selfish personal interests at

the expense of the Grantor or the Grantor’s dependents.)

(a) Quarrelsome\emotionally distant relationship with Grantor’s close family and friends -
especially if family/friends are Grantor’s dependents or Will beneficiaries)

(b) Disparity of wealth, e.g. Grantor much wealthier that Attorney?

(c) Financial need (e.g. Attorney is a dependent)

(d) Personal (e.g. immature “entitled” child, or child of first marriage expected to deal with

his dependent step-mother)

Risk factors for financial mismanagement:

1. Lack of financial acumen

3
With thanks to Richard Austin.
Comment: Not everyone who lacks some necessary technical skill fits this category. This is

aimed at people who cannot reliably identify tasks or issues on which expert advice is needed

and locate, retain and supervise the necessary advisors.

2. Egotism, i.e. the person who “knows everything” and won’t seek assistance.

3. Family Factors

(a) “Split” high-tension families, i.e. parents have history of setting children against one
another and playing favourites, leading to high levels of distrust and paranoia.

Comment: In this setting the Attorney sees office as a prize to be won, and an opportunity to

beat out sibling competitors in anticipation that they’d do the same given the opportunity.

(b) Prior history of intra-familial litigation (any kind: business\partnership, estate, mental

capacity or matrimonial) or,

(c) Grantor was extremely litigious

Comment: The risk here is that parents have effectively taught children\other relatives that

conflict leading to litigation is normal and acceptable.