Law Tips: Three Less-Recognized Reasons It’s Important to Plan for Digital Assets

A few weeks ago on Law Tips Professor Gerry Beyer shared his insights on the growing significance of digital assets in everyone’s estate planning. You can find that article at: Estate Planning Does Not Include Just Grandma’s Cameo Brooch Anymore. It’s my pleasure to provide a continuation of that discussion.

Do you and/or your clients dismiss the importance of a plan for online accounts, cloud and flash drive storage, blogs, etc? How might your client be effected if he/she does not make provisions for protecting these digital assets? Professor Beyer outlines the myriad of issues in his CLE training for ICLEF’s Midwest Estate,Tax & Business Planning Institute. Such as, he discusses how planning makes things easier on executors and family members. How it prevents identity theft. How it avoids financial losses to the estate. As well as other critical issues in the estate planning realm. Today we’re sharing three of perhaps the less-recognized reasons that Prof. Beyer points out to make an estate plan for digital assets:

To Avoid Losing the Deceased’s Personal Story

Many digital assets are not inherently valuable, but are valuable to family members who extract meaning from what the deceased leaves behind. Historically, people kept special pictures, letters, and journals in shoe boxes or albums for future heirs. Today, this material is stored on computers or online and is often never printed. Personal blogs and Twitter feeds have replaced physical diaries, and e-mails have replaced letters. Without alerting family members that these assets exist, and without telling them how to get access to them, the story of the life of the deceased may be lost forever. This is not only a tragedy for family members, but also possibly for future historians who are losing pieces of history in the digital abyss. Rob Walker, Cyberspace When You’re Dead, N.Y. TIMES, Jan. 5, 2011.

For more active online lives, this concern may also involve preventing spam from infiltrating a loved one’s website or blog site. Comments from friends and family are normally welcomed, but it is jarring to discover the comment thread gradually infiltrated with links for “cheap Ugg boots.” Id. “It’s like finding a flier for a dry cleaner stuck among flowers on a grave, except that it is much harder to remove.” Id. In the alternative, family members may decide to delete the deceased’s website against the deceased’s wishes simply because those wishes were not expressed to the family.

To Prevent Unwanted Secrets from Being Discovered

Sometimes people do not want their loved ones discovering private emails, documents, or other electronic material. They may contain hurtful secrets, non politically correct jokes and stories, or personal rantings. The decedent may have a collection of adult recreational material (porn) which he or she would not want others to know had been accumulated. A professional such as an attorney or physician may have files containing confidential client information.

Without designating appropriate people to take care of electronically stored materials, the wrong person may come across this type of information and use it in an inappropriate or embarrassing manner.

To Prepare for an Increasingly Information-Drenched Culture

Although the principal concern today appears to be the disposition of social media and e-mail contents, the importance of planning for digital assets will increase each day. Online information will continue to spread out across a growing array of flash drives, iPhones, and iPads, and it will be more difficult to locate and accumulate.

As people invest more information about their activities, health, and collective experiences into digital media, the legacies of digital lives grow increasingly important. If a foundation for planning for these assets isn’t set today, we may re-learn the lesson the Rosetta Stone once taught us: “there is no present tense that can long survive the fall and rise of languages and modes of record keeping.” Ken Strutin, What Happens to Your Digital Life When You Die?, N.Y. L.J., Jan. 27, 2011 (For fifteen centuries, the meaning of the hieroglyphs on the Rosetta Stone detailing the accomplishments of Ptolemy V were lost when society neglected to safeguard the path to deciphering the writings. A Napoleonic soldier eventually discovered the triptych, enabling society to recover its writings.)

Again, thank you to Professor Gerry Beyer for sharing his expertise on the ramifications of failing to include digital assets in estate planning.

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About our Law Tips faculty participant:
Prof. Gerry W. Beyer is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, Lubbock, TX. He joined the faculty at Texas Tech in June 2005. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools. He was also the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer. He has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law, an estate planning casebook, and the Wills, Trusts, and Estates volume of the Examples & Explanationsseries. Professor Beyer received his J.D. from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Exploring Ambivalence and Moving Toward Settlement

Missing the moment often is a precursor to impasse. As mediators, we are frequently faced with micro-moments of emotion. To the degree we can recognize the moment and respond appropriately, we build trust, de-escalate conflict, restore cognitive functioning, and provide compassion to the parties and their counsel. All of these events lead to settlement.

This introduction to mediation is offered by Douglas E. Noll, a full time peacemaker and mediator and ICLEF mediation training participant. He specializes in difficult, complex, and intractable conflicts. Today we have the opportunity to garner a few tips from Doug on understanding ambivalence so that settlement can be attained.

Exploring Ambivalence

A key assumption we must make as mediators is that people do not usually come to mediation ready to negotiate a settlement. Generally, the lawyers agree upon and organize the mediation and tell the parties to show up. Some lawyers have pre-mediation conferences with their clients, but most do not. The parties have been living with the lawsuit for months, if not years. It has become a part of their life. They have usually built up expectations about how winning will change their lives for the better. Now they’re coming to end it all through mediation. They don’t know how they feel about settling their case.

On the one hand, people generally dislike lawsuits and lawyers, which drives them towards settlement. On the other hand, people have strong feelings about justice, fairness, and the need for vengeance and vindication, which pushes them away from settlement. These feelings are reinforced by a number of cognitive biases that distort decision-making away from settlement. As a result, people are often ambivalent about settlement. This is a natural and expected phenomenon that baffles newer mediators.

Do not challenge the ambivalence, but rather acknowledge that people feel two ways about it: They want to change and they want things to stay the same. Staying the same often represents comfort, familiarity, and certain pleasures (especially the anticipatory pleasure of vengeance). The emotional reasons to settle need to be stronger than the reasons for staying the same in order to “tip the balance” for settlement.

Why Is Ambivalence Common?

Ambivalence happens because the party feels two ways about change. When trying to be convinced of all the reasons to make a change, a party feels the need to present the other side of the story. Lawyers are the same way. They will always argue why they will win and will rarely argue in favor of settlement until late in the process. Psychologically, the arguments for winning are just as important as the reasons for settlement being reflected by the mediator, even if the arguments make no sense. The stronger the mediator argues his or her point for settlement, stronger resistance he will get from the person that doesn’t want to change. The correct practice is to acknowledge the ambivalence and “come along side” the party or counsel. Parties and counsel must be given the freedom to talk about the side that doesn’t want to change.

For example: Tony says he has a prescriptive easement over Tom’s property. He says his dad used to drive cattle along the road for 40 years. He considers his use of the road as part of his lifestyle. On the other hand, he is worried about the continued cost of the lawsuit and the stress is causing on his family and business. If you encourage Tony to settle because he needs to end the stress of the lawsuit, he is likely to tell you all the reasons why he should continue to litigate. Ultimately, he will tell you that he would rather pay his lawyers everything he has rather than concede anything to Tom in settlement.

In contrast, if you explore the status quo and acknowledge how much he enjoys using Tom’s road, he receives the message that you are listening and are not rushing to change him. You learn more about the thoughts and feelings that underlie his strong feelings. You have signaled that you are concerned with exploring his view of the world. After talking about staying the course of the lawsuit, he will feel the itch to talking about the other half of the story, the reasons he wants to settle.

Ambivalence is not always a circle cut exactly in half. For someone in pre-contemplation (who is not considering settlement), the part that doesn’t want to change might be much larger than the part that does want to change. However, both parts are still represented. At times, such as when a person is moving through the stages of change, the side that wants to change may get bigger and bigger. It may also shrink down again. This can happen from session to session or even minute to minute. The most important point about ambivalence is that having it is normal and fluctuation is normal.

Thank you to Doug Noll for his insights into recognizing ambivalence and assisting clients at moving through the settlement stages. For further information on Mr. Noll’s training you may want to investigate his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators – 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession – 3 CLE / 3 CME / .5 E - December 3

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About our Law Tips faculty participant:
Douglas E. Noll, Esq. is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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12th Annual Family Law Institute – Thursday & Friday October 16-17

ICLEF’s Annual Family Law Institute is the most significant CLE seminar for Indiana’s family law attorneys. Each year our program provides an incredible collection of lectures and panel discussions ranging from child custody matters to estate planning issues in divorce. This year is no different. Institute Chair Andrew Mallor, Mallor Grodner, has once again assembled a faculty of the leading experts from all areas of family law including judges, psychologists, neutrals, mediators, and even financial consultants.

With so many significant changes and developments this year in the family law arena, this is truly one of the “must attend” events for the family law practitioner.

12TH ANNUAL FAMILY LAW INSTITUTE
12.5 CLE / 2.25 E / 12 Family Cert. – Thursday & Friday, October 16-17

LIVE IN-PERSON SEMINAR
-ICLEF Conference Facility, Indianapolis

LIVE GROUP WEBCASTS
- DeFur Voran, Muncie

LIVE INDIVIDUAL WEBCASTS OF DAY 1 & DAY 2
- From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Do You Understand Conflicts of Interest?

What are the areas of ethics that are often misunderstood by practicing lawyers? According to our long-standing ethics experts, one of them involves the lawyer’s duty of loyalty to the client, or conflicts of interest. Chuck Kidd and Kevin McGoff, ICLEF ethics faculty, bring essential reminders to practitioners of the most common ways in which lawyers get themselves sanctioned. “Conflicts of Interest” is on the list of top ten grievance complaints they often discuss. Here’s their advice on the subject:

Conflicts of Interest

This is one of the areas of ethics that concerns practicing lawyers the most, but appears to be one of the least well understood by the bar. In essence, the conflict of interest rules govern different aspects of the lawyer’s duty of loyalty to the client. Some rules act to protect the client from conflicts with other clients, other rules act to protect the client from their own lawyer and still others act to protect former clients from some of the dangers of conflicting interests after the representation is over.

Cases are legion which explore all the contours of this area of ethics. Certainly any written work exploring this subject would be a respectable tome. In the final analysis, these cases revolve around the question: “to whom does the lawyer’s loyalty run?” If the answer isn’t unequivocally, “the client,” then a conflict of interest almost undoubtedly exists. One case illustrates the extent to which conflict questions can be simultaneously complex and very apparent.

In Matter of Watson, 733 N.E.2d 934 (Ind. 2000), Respondent wrote a will for an 85-year-old man who was the largest single shareholder in an Indiana telephone company. The Respondent’s mother was the second largest shareholder in the company. Subsequently, Respondent prepared for the testator a codicil which granted an option to the company, upon the testator’s death, to purchase these shares at a price reflecting the stated book value. After the testator died, the board of directors elected to exercise the option to purchase the estate’s shares at the listed book value.  About two years later, Respondent, his mother, and the company’s remaining shareholders sold all of the company’s stock, realizing an amount per share in excess of two times that paid to the testator’s estate for the shares.

The Supreme Court found that the Respondent knew or should have known that the option for the company to buy the shares at book value was setting a price which could be substantially less than fair market value. Respondent was found to have violated Prof. Cond. R. 1.8(c) because he drafted the codicils when it was reasonably foreseeable that the instruments had the potential for providing a substantial gift to him and his mother. As a result, Respondent was suspended from the practice of law for sixty days.

Following are additional cases Mr. Kidd and Mr. McGoff offer as examples of conflict of interest issues:

  • Matter of Godshalk, 987 N.E.2d 1095 (Ind. 2013)
  • Matter of Ross, 982 N.E.2d 295 (Ind. 2012)
  • Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011)
  • Matter of Pugleise, 941 N.E.2d 1044 (Ind. 2011)

Knowing that keeping abreast of ethics issues is of paramount importance to all Indiana lawyers, we are grateful to Chuck Kidd and Kevin McGoff for their contributions. Their enjoyable mode of presentation adds that special element that isn’t included in all ethics programs. You have opportunities to experience their most current ethics updates as Kidd and McGoff appear again as the kickoff presentation for the 36th Annual Judge Robert H. Staton Indiana Law UpdateTM at the Indiana Convention Center in Indianapolis, September 23-24. Also, the popular Vignettes of Legal EthicsTM program is scheduled live in two locations around Indiana in October and November.

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About our Law Tips faculty participants:
Charles M. Kidd, Staff Attorney, Indiana Supreme Court Disciplinary Commission, is a former Indiana Deputy Attorney General (1988-1991). He is author of numerous continuing legal education works including the Survey of Recent Developments in Professional Responsibility in volumes 26 through 28 and 30 through 36 of the Indiana Law Review.

Kevin McGoff, Bingham Greenebaum Doll LLP, Indianapolis, is an experienced professional liability and litigation attorney. He represents attorneys and judges in professional licensure matters, assists lawyers and law firms on issues pertaining to firm management, law firm dissolution and organization, malpractice, legal ethics and related litigation. Kevin has more than 32 years of experience defending lawyers and other professionals in state and federal court at trials and on appeal.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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