The story, covered in Texas Lawyer and picked up by the ABA Journal, centers around a negative Google Review of the firm posted by a commenter identifying himself only as “Ben.” The review reads, “Bad experience with this firm. Don’t trust the fake reviews here.”

In response, the Lenahan Law Firm filed a defamation lawsuit against “Ben Doe” in state district court. In addition to seeking $50,000 in damages from Ben, the firm’s stated goals in filing suit are to subpoena Google to discover Ben’s identity and to secure the removal of the negative review.

Putting aside a discussion of the merits of the lawsuit itself, there are a few practical reasons why I would not advise lawyers to fight bad online reviews with litigation.

First, a lawsuit won’t make the review go away. Even if the Lenahan Law Firm succeeds in forcing Google to permanently remove “Ben’s” negative review, the act of filing suit has simply created a permanent digital and legal memorial of exactly the situation the firm wants everyone to forget.

Second, the firm may be doing more to sabotage its own reputation than Ben ever dreamed of. Consider this from the viewpoint of an internet-savvy potential client…after all, Lenahan partner Wes Black told Texas Lawyer that a driving force behind filing suit is the fact that the firm gets a majority of its business from online searches.

So, before the lawsuit, a prospective client who Googled “Lenahan Law Firm” or “Lenahan Law Firm reviews” might have read Ben’s review. If they’d seen it, they likely would have evaluated it for what it is – a vague, two-sentence review by an anonymous person…maybe it’s legitimate, or maybe this guy has a chip on his shoulder. But they would also have seen several longer, positive reviews. And they would have seen the firm’s very well designed website.

After the lawsuit, the same search brings up a number of hits highlighting the firm’s response to Ben’s review. Which leaves a prospective client to wonder: why the over-the-top reaction to a pretty run-of-the mill review? How reliable is this firm’s judgment? And if this is how they treat clients who disagree with them, how will they treat me if I hire them and there’s a legitimate problem?

So, what is a law firm to do? There’s no doubt that negative online reviews can have a huge impact on your reputation in the community, not to mention your bottom line.

There are a number of practical steps you can take – short of filing a lawsuit – to protect your online reputation and combat negative reviews and comments. In my next post, I’ll outline five of them.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

The family of Josh Powell, the man who killed his two sons in an explosive house fire in Washington state, recently said he will not be buried in the same cemetery as the children.

Powell’s mother, wracked by grief, realized no one else was planning the disposition of Josh Powell’s remains. All the attention was focused on his two murdered children. She visited a funeral home and a few cemeteries and picked a gravesite.

It turns out the grave she selected was just up the hill from where the boys were buried. They were laid to rest on February 11 at Woodbine Cemetery, the municipal cemetery in Puyallup.

The idea that the murder suspect would be buried near his victims sparked outrage in the community. His family retreated and started looking for another cemetery in which to bury Powell. (read the MSNBC.com story)

Shopping around for a burial plot after a tragic murder is the last thing any family member wants to do. In this case, the mother’s clueless selection added insult to injury. Yet, it does raise some points for discussion.

Few people younger than retirement age buy burial plots. It’s something embraced by those who plan ahead. With so many people choosing cremation, why doesn’t this family look at that option and decide what to do with the remains later?

Heavy stuff. Perhaps a light romantic comedy would be more palatable. The film Elizabethtown (2005 – PG-13) offers an opening to discuss burial versus cremation.

In the film, Drew Baylor’s father unexpectedly dies of a heart attack while visiting his family in Elizabethtown, Kentucky. His mother sends Drew with dad’s favorite blue suit to have the body cremated and brought home to Oregon.

Drew is shown the Baylor family plot in Kentucky, which dates back 272 years. They don’t cotton well to the idea of cremation. His mom insists, and dad is cremated.

Drew’s mother is not well regarded by the Baylors. This being a comedy, she comes to the memorial service, where their old grudges are resolved. In reality, family funerals often extend or intensify disputes rather than bury them.

Then there’s The Blue Suit Compromise. Since the Kentucky Baylors wanted a burial, dad’s blue suit and other items were buried in the family plot. Drew takes his dad’s ashes on a road trip, stopping for scattering at significant spots along the way.

What should a family do about a final resting place? Is one even needed? Would they want burial or cremation? Are finances a factor in what the family wants done?

It’s better to raise these questions before there’s a death. It can reduce an enormous amount of stress at a time of grief. Are you the right person to help start that conversation?

Gail Rubin, “The Doyenne of Death,” is author of the award-winning book, A Good Goodbye: Funeral Planning for Those Who Don’t Plan to Die. She speaks to groups using clips from funny films to illustrate funeral planning issues and help start serious conversations. Her website is http://AGoodGoodbye.com.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

What if your marketing system needs an overhaul? The following five-step system can make an immediate difference in your firm’s marketing efforts:

1. Write down specific, measurable, time-bound goals. These are the only kinds of goals that are truly valuable because they are the only kinds of goals that are actionable.
2. Start with the end in mind.
• Find out where your firm’s revenues are now.
• Identify your revenue goal for 2012.
• Break down the categories of work you did this year, identify how much revenue you generated for each category, and determine the number of clients each category represented for your firm.
• List your 2012 revenue goal for each category.
• Divide that number by 12 to get a monthly revenue goal.
• Identify how many clients you’ll need per month to meet the revenue goal for each specific category. 
3. Play the body count game – how many people do you have to be in front of to reach the numbers you wrote down for Rule 2? The more people who attend one of your seminars, read your marketing materials, or otherwise come into contact with you as part of your marketing strategy, the more clients you’ll ultimately have by the end of the year. It all boils down to numbers.
4. Maximize your marketing channels. You need multiple channels – forget buying a Yellow Pages ad and waiting for the clients to pour through your door. The key is to come up with a system that implements multiple marketing activities that suit your personality, your staff, and your marketing budget. A few ideas:
• Arrange seminars for prospective clients.
• Appear as a CLE speaker.
• Endorse private seminars for a local insurance agent or financial planner.
• Publish radio or television ads.
• Send out monthly e-Alerts to your centers of influence.
• Send a three-year amendment letter to your existing estate planning clients.
• Have a family seminar to educate the children of your existing clients about estate planning.
5. Schedule next year’s marketing activities now. The schedule should be on a huge plastic wall calendar where everyone in the firm can see the plan and be part of it. Then, set deadlines, delegate responsibilities to your staff, and hold everyone accountable by having weekly marketing meetings.

It sounds like a lot of work, and if you have not implemented a focused marketing strategy before now, it will take some getting used to. However, before long, you’ll begin to reap the rewards of planning your marketing and taking steps to stay on track. Trust me, the rewards are extraordinary!

Sanford M. Fisch
CEO & Co-Founder
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

It’s common to see gift certificates for businesses like restaurants and spas offered on Groupon. But not too long ago, an attorney in Missouri ran a Groupon deal for simple estate planning services. Before taking this innovative step, he made sure he was in compliance with Missouri’s ethics rules.

Since then, state disciplinary bodies have begun to weigh in on the issue of Groupon for lawyers. In 2011, the North Carolina State Bar Council issued Formal Ethics Opinion 10, permitting a lawyer to advertise on a daily discount website, provided certain disclosures are made and certain conditions are met. The South Carolina Bar issued a similar opinion, Ethics Advisory Opinion 11-05.

And most recently, the New York State Bar Association Committee on Professional Ethics has issued an opinion setting forth guidelines for lawyers to follow when marketing services on “deal of the day” or “group coupon” websites.

The North Carolina, South Carolina, and New York opinions seem to agree that daily deal website ads do not violate rules prohibiting fee splitting because the arrangement does not give the website the opportunity to influence an attorney’s professional independence of judgment. However, they point out that this type of advertising raises other potential ethics concerns that need to be addressed before an ad would be permissible, such as uncertainty concerning the scope of an attorney’s representation and the handling of unearned fees.

Is Groupon an effective marketing move for your law firm? That’s a business question only you can answer.

The real lesson here is twofold… first, don’t be afraid to be innovative when it comes to marketing your firm’s services. After all, nothing ventured, nothing gained.

But second, remember that ethics rules — particularly those regarding advertising — vary significantly from state to state. What is allowed in Manhattan might not be allowed in Manhattan, KS. Don’t be afraid to be innovative… but be sure to comply with your state’s rules or run your idea by your state’s attorney ethics enforcement officials.

Speaking of keeping up with ethics rules… check with your bar association, there may be an app for that!

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Choosing a Health Care Agent
Attorneys can add important value to the advance directive drafting process and to the clients’ thinking about advance directives. With the Health Care Power of Attorney, you have the opportunity to help clients be thoughtful about their choice of health care proxy. The guiding responsibility: to think about the best way for the clients’ wishes to be honored.

A.    Share with clients the skills and qualities of the ideal healthcare proxy

The agent should be someone who can:

• advocate for the patient with doctors, hospitals, and the medical community generally;

• manage conflict within the family

And while there is no such thing as a perfect agent, there is always the “best-possible agent” from among the client’s options.

B.     Counsel clients not to assume that their spouse is the best choice

While it is understandable that most clients do choose their spouse or significant other as their agent, sometimes spouses are simply not the best equipped to fulfill this role. A spouse may not be able to handle conflict, for example. If you recognize this, you should advise the client to select another party. But even beyond the obvious cases where the spouse is the wrong choice, you should broach this concept with clients in ways that will make the topic comfortable and safe for them to consider and discuss:

• Introduce the idea in the third person (e.g. “some of my clients find that their spouse actually isn’t the best person to make these decisions…)

• Use specific client examples – real or fictional stories war stories of clients who inappropriately chose the spouse

C.    Do not appoint co-agents

While attorneys have differing opinions on this and states also vary, the experts who spoke to this point strongly recommended naming only one agent. Clients who want to appoint co-agents usually have multiple adult children whom they want to be involved.

Solutions for this include:

• Having an understanding that there is a single decision-maker but shared information between the agent and the other siblings

• Even including language in the HCPOA that the agent must reasonably consult with the other adult children – for instance before making an important decision

D.    Help clients make the family comfortable with their choice of agent

As counsel, the attorney’s role is also to help clients think about how the family moves forward after the death of the client. It’s important that the adult children or the spouse who is not chosen as the agent feels OK about this decision. Counsel your clients to talk about their choice of agent with the loved ones(s) whom they didn’t name – and to explain their thinking. Often this can be done in very compassionate terms, e.g. “I knew it would be too hard for you to make these decisions…”

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directives registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

They’re being told that it doesn’t matter where they get their bundle of paper. That whether the documents are from the Smith Firm or the Jones Firm or LegalZoom, the outcome will be the same.

And you really can’t blame them. They have no way of judging who’s good and who’s not so good any more than you or I can judge whether our heart surgeon is any better than his colleague in the next suite over.

But here’s what you and I do know. We know that you’re different from the Smith Firm and the Jones Firm. And we know that you’re vastly different from LegalZoom. If you want to avoid the commodity trap, you need to differentiate yourself and your services.

Here’s how:

Develop a process unique to your firm that takes care of clients from the moment they first retain you through the end of your relationship; ideally, the relationship will last a lifetime.

Communicate this multiple-step process in a client-friendly way. For example:

The Six Step Client Legacy Wealth Planning System

1. Family Legacy Consultation and Roadmap
2. Family Legacy Plan Design
3. Family Legacy Plan Development
4. Family Legacy Plan Execution and Delivery
5. Family Legacy Plan Asset Transfer and Funding
6. Family Legacy Lifetime Communication and Updates

This communicates clearly to the client: Wow! That’s a lot of work, and it means that you’re there with them from beginning to end. A prospective client has no way of comparing a generic, bare bones living trust to this six-step process you have to offer them – and quite honestly, that’s because there is no comparison.

This process also launches your relationship with a new client, which puts your firm head and shoulders above those competing on the basis of commodities. There’s no relationship you can establish with a transaction where you hand someone a paper with some ink on it and show them where to sign. Having a process is the way out of the commodity trap – for you and your clients.

Sanford M. Fisch
CEO & Co-Founder
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

There are many reasons to adopt an adult, both legal and emotional:

• Establish a tighter bond between the parties
• Enable inheritance rights between the parties
• Enable the “child” to get health insurance on the “parent’s” plan

Let’s look at a situation to see how this might arise. John is the heir to a large sum of money. However, these assets are left in trust for him. At his death, the assets are to go to his children. The trust and state law do not exclude adult adoptees as potential children. If he has no children, the assets go to his cousins. If he had a limited power of appointment, he could send those assets elsewhere at his death. He does not. He wants the assets to go to his domestic partner, Mike. By adopting Mike, John can ensure that his assets go to Mike.

In a unique twist, adult adoption can give lifetime access to otherwise protected money. Floridian John Goodman had placed $1.5 million in an irrevocable trust for his children. He had two children at that time. The assets were invested and ballooned in value to several hundred million dollars. The transfer of assets into the trust was not a fraudulent transfer and Goodman had no interest in the trust. Thus, those assets were exempt when he became involved in litigation in which he was accused of drunk driving and killing a 23-year-old man and then leaving the scene.

Goodman, age 48, adopted his girlfriend, age 42. When she became one of his “children,” under the terms of the trust, she gained access to the funds in the trust. So, through the adult adoption, Goodman’s girlfriend (and, indirectly, Goodman himself) gained access to millions of dollars of money which has been deemed off limits to his creditors.

Here’s a link to the story: http://www.forbes.com/sites/trialandheirs/2012/02/06/can-florida-millionaire-justify-adopting-his-girlfriend/

Perhaps adult adoption may be increasingly relevant as an estate planning and asset protection tool.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Most of the documents needed for taxes are very revealing. They contain client’s name, address, credit account information and most importantly, their SSN. For the identity thief, it means that there is a treasure chest of information to be targeted in the next two months. This provides you, as a trusted source, with a reason to meet with your clients and prospects to share the following ID Theft prevention checklist – ways to help prevent their personal identifying information out of the hands of would-be thieves.

Feel free to use the copy below when meeting with a client or prospect, as information to present during a social prospect or client event, or as part of your direct mail invitation content.

ID Theft Prevention Checklist:

1. Document Disposal – Once you have gathered the receipts, paperwork and the various forms you need to calculate your taxes, make sure that any papers you no longer need go through a good, cross-cut shredder. Papers with credit card account numbers, Social Security numbers (health benefit payment forms), loan papers, and such all have information that a thief can convert into a new credit account in your name. This tip also applies to all the papers you decide to dispose of from previous years. Just because a receipt is 7-years old does not mean it cannot be used to your detriment.

2. Computer Security – Many of us do our taxes or prepare our information for tax accountants on our computers. If your computer links to the Internet it must have firewall software to protect it from invasion.

3. Mail Theft Prevention Tip – Since these tax forms have a lot of information on them, the best advice is to take the forms directly to the post office, dropping them in a box INSIDE the post office. It is best to not drop them in an outside box after last pick-up of the day since that gives a thief more opportunity to steal the mail. Do not leave them in the outgoing box at work, drop them at the corner blue box or leave them in an unlocked box for pickup.

4. Social Security Number on the Check – Should I or shouldn’t I? Since your check goes through so many hands, it is best not to print your entire SSN on the face of the check. The last 4 numbers should suffice if you decide to put any part of the number at all.

5. Tax Preparers – Be selective about who works on your taxes. Check out companies with the Better Business Bureau, especially if they are new or seasonal offices. Ask questions of the managers. How will your information be stored? What type of computer security do they use? Has the person who will be working on your taxes gone through a thorough background screening? Do you see other people’s papers sitting around? If you feel uncomfortable or believe this is not a company that understands security issues, take your business elsewhere.

Jorge Villar is President of Response Mail Express (RME), with more than 26 years of direct marketing experience, he is known in several industries for his ability to create mail packages that garner the highest response rates. He is responsible for the Seminar Success program that, for the last 17 years has accounted for more than 65% of the events being held in the nation with over 14 million individuals making reservations. Mr. Villar has also been very successful marketing to physicians and business owners regarding Success Planning and Asset Protection. Response Mail Express, and parent company DME, is a $100+ million marketing powerhouse, housing over 600 employees in their 2 state-of-the-art facilities in Florida. Their marketing ideas are presently being utilized by over 10,000 clients, including: top producing advisors, estate planning attorneys, large financial organizations, health care organizations, universities and many other industries. Mr. Villar is a frequent key note speaker at national financial symposium and training conferences.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

The Good News
It’s always good to have excellent employees. They do good work, they’re a pleasure to be around, and they tend to increase your bottom line. It’s every boss’s dream, and every boss wishes for an office full of excellent employees.

The Bad News
But here’s the problem with excellent employees: if you’re dependent on a person to run your business, you’re vulnerable. Great employees get sick. They move away. They make lifestyle changes. All these things can result in job changes that leave bosses in a bind, so your firm is what we call “people dependent.”

The Solution
Happily, you can have great employees without making your firm’s success dependent on those employees’ life choices. You do this by making your business dependent on systems rather than on people.

You accomplish this by establishing a firm-wide organizational chart, which Sandy discussed in one of his recent blogs. You also implement what we call position contracts for each function within your law firm. A position contract is a detailed description of what each person does in the firm. This is an ongoing, updated process so that if one of your employees leaves, there’s a system to follow.

Even with an organizational chart and position contracts in place, hiring excellent employees is still top priority. However, when your law firm is systems-dependent rather than people-dependent, there’s order and predictability, even when you lose a great employee.

Robert Armstrong
President and Co-Founder
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

First, (I will not “bury the lead” reason), TRA 2010 sunsets at the end of this year. The DSUEA is part of TRA 2010 and, if TRA 2010 sunsets, the DSUEA sunsets with it. Unless your client and your client’s spouse both plan on dying this year, there is no guarantee the DSUEA will exist after the ball drops in Times Square this New Year’s Eve.

Second, to use the DSUEA, an estate tax return must be filed for the first spouse to die. When the first spouse dies, they do not need to file an estate tax return if they have under the applicable exclusion amount. However, in order for the surviving spouse to utilize the DSUEA, the first spouse’s estate must file an estate tax return which would otherwise be unnecessary.

Third, the DSUEA does not apply for GST purposes. The Generation Skipping Transfer tax exemption is a way to shelter a descendant’s inheritance from estate tax in their own estate. Example: John leaves $1 million to his daughter Betty in trust. Betty dies with the applicable exclusion amount. Since John left the money to Betty in trust, with distributions subject to an ascertainable standard, the $1 million is not included in Betty’s estate even though she was the trustee. Thus, the $1 million passes on to Betty’s son Louis without further transfer tax. Even if the DSUEA applies to preserve the predeceasing spouse’s applicable exclusion, it does not preserve their GST exemption.

Fourth, the DSUEA does not operate to protect the assets from the surviving spouse’s creditors. A trust can be drafted in such a way as to protect the assets from the spouse’s creditors, whereas leaving the assets directly to the spouse does not.

In conclusion, while the DSUEA is a useful tool to utilize in the case of an unplanned estate, it is not a replacement for a credit shelter trust.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com