When you need a second legal opinion

Consultations are traditional in medicine, because doctors aren't omniscient. So why assume your lawyer is?

By Brad Burg

"Yes, I've given a second legal opinion that helped a doctor avoid trouble," recalls one Midwestern estate planning lawyer. "A pediatrician and his wife consulted me, after an attorney persuaded them to leave their $2 million in assets under the probate court's control. What a mistake! The court would have handed it all to their only son, once he reached the ripe old age of 18." Instead, the second attorney persuaded them to leave everything in trust.

Why did the Midwestern lawyer request anonymity in this article? "Because I don't want to be seen as encouraging clients to seek second opinions."

She's not alone. Many attorneys told us they oppose having clients get second opinions. "I'd avoid it when a litigation or negotiation strategy is involved," says Geoffrey T. Anders, who practices in Plymouth Meeting, PA. "Bringing in a second attorney can undercut your main attorney's authority and cause confusion about which approach is best. It will also increase your fees."

Valid points—yet you may disagree. After all, as a physician, you often consult other doctors, and second opinions can be valuable in law for the same reasons. Sometimes they avoid flat-out mistakes. Even more universally, in both professions you may need to speak with several experts to find out about the options available.

Indeed, some attorneys do favor the idea. "It's not just that lawyers often handle the same legal situation very differently," says Philadelphia attorney James Lewis Griffith Sr. "Typically they won't supply much detail about alternative approaches. If you talk only to one, you might never even know all your choices."

Naturally, you might consult a second attorney when the money at stake justifies it. Even Anders agrees: "For an estate of $2 million or more, for example, a second opinion may be worth it." Also, in business deals involving much negotiation, you might want additional eyes to review the final agreement.

In addition, you should consider a second opinion when you're facing big liability, say from a lawsuit—and in particular, when medical malpractice threatens, because "your" malpractice defense attorney likely will be chosen by your insurance carrier. "Doctors concerned that their insurer's attorney isn't doing enough sometimes ask me to take over," says Griffith. "I'll say, 'If you want to retain me personally, I'll work with the other attorneys—and look over their shoulders, too.' "

In some truly routine situations, such as a mortgage refinance, a second attorney probably is overkill, because the documents are largely boilerplate. Conversely, during truly complicated negotiations, bringing another attorney in for consultations may be unwieldy. "It can be counterproductive to have to review everything with a client's Monday morning quarterback," says Gideon Rothschild, a New York attorney.

Or suppose you and prospective partners, each with an attorney, are hammering out a practice agreement. Instead of bringing in your second attorney's views at that point, Anders suggests, consider a more positive variation: Before you begin such negotiations, assemble a team and put one lawyer in charge. "Then you could get several viewpoints, but also keep moving."

A second attorney may do more than review papers

Beyond getting a second lawyer to review documents, you might consult with him in some depth.

"Lawyers don't always know every aspect of every deal well," says New York attorney and financial planner Gary H. Schatsky. "For instance, some who write practice agreements know a lot about income division, but little about structuring buyouts. So a second opinion may strengthen weak spots in an agreement."

Moreover, notes Pittsburgh lawyer Robert B. Wolf, "we attorneys aren't always objective. In drawing up a trust document, lawyers who don't favor corporate trustees may ask a client, 'Would you like to keep control of the trust in the family?' But I often recommend corporate trustees alongside family members, so I may ask, 'Would you want a professional trustee involved along with a relative?' So a doctor who talks to several attorneys may get a more balanced picture."

Rothschild believes that second opinions can clog up the legal machinery—yet he, too, notes they may help provide a broader view. "For example, in many contexts, I raise asset protection issues; some lawyers rarely focus on them."

Paying a second fee may save you money

Two opinions may not mean two full fees. "To review one attorney's $5,000 estate plan, another lawyer might charge only $1,000 or so," says David J. Schiller, a Norristown, PA, attorney. Even if you actively consult with the additional lawyer, the extra fee might be moderate, agrees Griffith: "Often, for a few hundred dollars I can outline recommendations."

To help decide on this, do a rough cost-benefit analysis. Say your estate will be worth about $2 million, and you've paid $5,000 for your estate plan. If you pay a second estate-planning fee equal to the first, you'll have spent $10,000 to protect the assets legally over 30 or 40 years. That's not really costly, particularly when you consider that if your heirs hire a money manager to handle those assets for them, they're apt to pay a 1 percent fee—$20,000—annually.

Indeed, you might save money by having exploratory talks with two attorneys early. "I met with one widow who'd spent a lot of time and money with an estate planner who likes complex structures," recalls Wolf. "The moats and drawbridges confused her and didn't reflect her priorities. She ended up using the simpler setup we designed, which suited her much better. If she'd talked to both attorneys in advance, she'd have seen the differences in style beforehand. She could have chosen the attorney whose approach was more compatible with hers, avoided anxiety, and paid only one fee."

How you should approach this idea

You may want to have a second attorney review your existing estate plan or partnership papers. And the next time you need additional legal advice, consider talking to two lawyers at the outset. Finally, if you consult a second attorney, do so in time for that lawyer's suggestions to be considered by those concerned.

Don't ask your current attorney whether a second opinion would be worthwhile, because a No answer would leave you in an awkward spot. Instead, say you're planning to get such an opinion. Your lawyer may be surprised, but shouldn't be offended. "In fact, if an attorney is really upset by the idea, I'd leave that office," says Griffith. "Professionals should be comfortable with the fact that there are always alternatives to consider."

Still, you don't want to harm a good relationship, notes Gary Schatsky, so introduce the idea diplomatically. As a physician, you have an easy way to do that: Just point out that doctors seek second opinions every day, because those opinions can be very valuable to their patients.

Where should you get the second opinion? If you're dealing with a legal firm rather than a sole practitioner, you may be tempted to turn to one of those other names on the letterhead. Several attorneys may be just down the hall—better yet, maybe yours can sound them out without a second fee. "That's one reason lawyers practice in groups: to access special knowledge, share experiences, and obtain a 'curbside consultation' for a client, without additional expense," Anders says.

Yet as Griffith notes, "Maybe a partner won't thoroughly critique your lawyer's advice. An associate may be even less critical. For an objective second opinion, you may do better going to a second firm." It still may be wise, though, to start with a name recommended by your primary attorney. A lawyer may listen more willingly and carefully to a colleague he respects.

The author is a former Senior Editor of Medical Economics.

 

Brad Burg. When you need a second legal opinion. Medical Economics 2001;17:56.