One Aspect of Preventive Law
Hermione K. Brown
I write this in the hope that it will help to suggest one way in which Preventive Law may be used by lawyers. It is only one aspect of a many- faceted concept, but it is the one I know best. I write solely out of a lifetime of experience-fifty-nine years as the wife of Louis Brown, 53 years as a lawyer practicing transactional law.
In the days when I first thought of going to law school, the designation "Preventive Law" was unknown; but the concept of it existed in a time-honored aspect of legal practice-the solicitor as "Counselor at Law". Indeed lawyers were frequently referred to respectfully in that manner. The words meant someone, other than a hired gun engaged by the hour. They referred to a solicitor-frequently gray haired-engaged under a long-term retainer arrangement who acted as family friend, consultant, and negotiator on all sorts of matters relating to the law. The Counselor prepared the client's will and maintained it in confidence. He acted frequently as trustee of the trusts for the client's children, and as their legal guardian. He advised on banking and financial matters, extricated the client from debt, served as his real property administrator and agent, negotiated in the event of intra-family disputes. He took positions on behalf of the client, and directly engaged in supervising litigation, where required. But the emphasis was on understanding the client's needs and desires and those of his family, on using the skills and knowledge of the law to achieve those desires and satisfy those needs to the maximum extent possible.
Although the fee structure applicable to lawyers to-day and the complexity of our legal system make it extremely difficult for one person to achieve all these goals, within my specialty of family wealth management and transfer I find it is possible to do so to a substantial degree.
I am the sole partner engaged in estate planning and trust law in a modest sized firm of fifteen (or sometimes fewer, but by choice, never more) lawyers. The firm does not have a litigation practice. It restricts itself to business transactions for individuals and their corporate and partnership entities, to legal problems within their particular area of expertise, to real estate problems that a small firm can competently handle and, in my case, to the area of family wealth transfer. Most of our clients are on some form of retainer arrangement, adjustable as their needs change. As a consequence, we carry our clients on our roster for years and years. When they are successful, we are successful. If they retire or are unemployed, we frequently carry them indefinitely with a small fee or even without a fee. But over the years, we get to know our clients, we try to advise them with objectivity after diligent probing of their true wishes, even though the immediate question posed may not disclose it. This may involve dissuading them from practices we deem unethical, or encouraging them to adopt techniques which will adapt to, or take advantage of, changes in the law, in their profession and in the world at large.
Although, to the young lawyers who have grown up watching courtroom melodramas on television, what I do is more the practice of psychology or the art of mothering, rather than the hard-nosed practice of law, I insist that is not the case. I spend hours and hours in continuing education, I read advance sheets from California and the federal courts, I study treatises, I listen to financial symposia, I keep abreast of related topics and I use the accumulated expertise as the unseen underpinning for my advice-to try to understand the client's real motivations and desires, not necessarily those that surface in a 15 or 30 minute interview, and focussing on those needs, to make sure to the best of my ability that no legal advantage is overlooked and no legal or practical solution is ignored.
That, I believe, is the essence and the goal of Preventive Law. It is also an extremely satisfying way to practice law.