Saturday, December 22, 2012

Why downloading legal forms is a bad idea, or...

Residuary clauses? Those are optional... right?

These days, there are a lot of websites that allow users to download legal forms and fill them out without the need of an attorney. The concept in and of itself is great. People should have easier access to the law, without unnecessary legal fees. The application is problematic because the law is so complicated that the forms are often too generic to do the users much good.

Without an attorney, a rubber stamp version of wills and even lease agreements can virtually ignore the actual needs of the person seeking legal protection. Those using the forms may actually find in the end that the form is dismissed outright by a court. Even more of a crisis, a badly executed form can result in a weird interpretation by a court that may pervert the intent of the writer.

According to the 1st DCA in April of 2011...

a residuary clause is not really necessary since "the property acquired by the decedent from her sister following the execution of the decedent's will passed by the decedent's will according to the decedent's intent as expressed in her will." Basile v. Alrich, Case No. 1D10-3110. This created the strained result that if one failed to have a residual clause... the court would simply imply it existed anyway.

This logic's flaw was illustrated by the dissent who opined on how bizarre future claims could become. A single, insignificant bequeath from a sizable estate through a will, containing no residuary clause, would effectively allow the benefactor to have a claim on the remainder of the estate. (Eep, I'd hate to see the malpractice claim for this one.)

According to the 1st DCA in August of 2011...

the draft in April may have been... stretching things. Now "[t]he will cannot, therefore, dispose of these items, not because they are after-acquired, but because no provision of the will covers them." Basile v. Alrich, 70 So. 3d 682, 687 (Fla. 1st DCA 2011). The 1st effectively reversed course in the same case, stating that "...the will as written and executed failed to dispose of those unmentioned assets."

It gives readers a chance to understand that the probate code is complex enough that even the well read Judges of the 1st DCA are battling with these issues at times.

So what are the lessons learned?

Well, in the above case, the will was originally an "E-Z Legal Form." It's blanks were handwritten, and did not contain a residuary clause. It is likely that no attorney was consulted either. When the will went into probate, that missing residuary clause became a big issue. Enough of an issue that it was escalated from probate court to the appellate level.

For non-lawyers, the lesson here is that it is never a good idea to try and draft your own will (or any other legal document for that matter.) It's a little less of a bad idea to use a generic form and hand write the blanks without at least asking an attorney for his or her opinion. Finally, if you are going to draft your own forms, don't forget the residuary clause.

For attorneys it is important that residual clauses for after-acquired property and monies be included at the request of your client. Generally the client will make it rather clear anyway. If the bequeaths get as specific as the above case, it is incumbent upon us to determine exactly how the after acquired possessions get inherited.


Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

Visit for more information.

Saturday, December 15, 2012

Ambulance Chasing By Proxy

The Basics of the Florida Bar's Business Card Rules

As I set about the front work of creating my law firm, I decided I needed business cards to give to my clients in their client packet. This would allow them to 1) find my contact information quickly, 2) take my information and place it in their cell, and 3) ultimately use my card to refer my firm to other people. As usual, I scoured the Florida Bar website for opinions and commentary on how to properly create a business card. Here is what I found, and it may surprise you.

Leaving Stacks of Business Cards at a Business

Chairman Holcomb back in 1963 opined that it would be highly unprofessional for an attorney to leave a stack of business cards with a banker (and presumably any other business) for the purposes of referring business. Professional Ethics of the Florida Bar, Opinion 62-69 (1963, Updated 2011). I found this to be strange, since there were practical workarounds (more on that later) to this opinion on "Canon 27".

Don't get me wrong, I agree in part with the idea. I always found it bizarre to go into a barbershop and find stacks of business cards advertising other services just laying around. It is not how I would like to promote my business. But I find the practice to be similar to a billboard on the side of I-4, which simply tells me that a particular firm exists and wants my business. Business cards are simply small billboards in my mind. I'm not a big fan of billboards either but they are a fact of life.

But the Chairman is consistent, "We believe that it would be most improper for an attorney to give his professional cards to anyone for the purpose of referring business, although in individual cases we find no objection." (Emphasis added.) Id. So in other words, handing out stacks of business cards to a person in a business is improper, but handing out one card at a time is okay even if that card is meant to draw in a referral.

What About Giving to Individuals?

Giving out a business card to individual clients, or people who simply ask is apparently still okay. (Phew.) One should avoid handing out stacks of cards to friendly clients, close friends, family, etc. They would violate the rule by acting as the ambulance chaser by proxy, so that makes sense. Id.

It is a reasonable expectation that a person in possession of your card may refer somebody to your firm. It is the secondary purpose of the business card (the first being a convenient collection of your contact information.) But let us be realistic, attorneys want more clients and a referral here and there doesn't hurt. Maximizing that referral base keeps us busy.

Let's face it: the business card has hardly evolved since the 60s. They are more artistic and flashy, sure... but ultimately they are small pieces of paper with your business information on them. They are also slowly dying off considering new technologies like phone bumping (a 21st century handshake?) Now networking is more a function of personal meetings and digital advertising. LinkedIn, Facebook, and G+ inter alia is fast becoming the more important media to spread news about your business around.

QR codes are another fast growing segment. I include them in my correspondence for my more tech-savvy clients. I am pretty skeptical that they will go mainstream for long. They are subjectively speaking... ugly. For example: here is my profile from LinkedIn.

Self-promotion is always a good thing. But there is one type of self-promotion that the Florida Bar has never opined against (except maybe the QR thing), and that's being a great lawyer.

The Workarounds I Promised

Nothing gets more referrals than great legal work. Winning a big case for a client will up your chances for a referral by... well, I don't have the numbers so I'll say a bajillion percent, give or take. Give back to the community, be involved, take on the hard cases which reek of injustice. You may not win, but everybody loves a good underdog.

That banker I spoke about earlier is constantly asking you for your card because 1) he or she has either forgotten to record your information on a smart phone, or 2) you're not that particularly memorable. Become memorable, and that banker (who talks with a lot of clients) will come across bad situations that may need your services. He or she will then say, "Hey wait, I know a really great attorney, let me get my cell."

Those words will beat any flashy business card hands down.


Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

Visit for more information.