Did Someone Say, "Lawsuit"?
When beneficiaries of two charitable trusts created by pharmaceutical heiress Ruth Lilly sued the trustee for breach of fiduciary duty, David A. Baker, a partner in McDermott Will & Emery's Private Client department in Chicago, helped defeat the $100 million demand. Baker runs the Estate, Trust and Guardianship Controversy Practice Group, six full-time and 12 part-time attorneys drawn from both the Private Client and Trial departments. Private Wealth caught with up with Baker somewhere between the courtroom and the negotiating table to learn more about his unique practice.
PW:  Besides fiduciary defense work such as the Ruth Lilly case, what does your group do?
Baker:  We provide controversy management services.  Controversy in the private-client area is increasing and people who are faced with those issues want specialized attention. For example, family financial separation.  As wealth goes down the generations and ends up cut into many shares, it is unusual for everybody to have the same financial interests.  But they may be yoked together, and one or more of them may really need out. At any given time, we have dozens of those going on.
We also do controversy planning, where someone is very concerned about the potential, if not the likelihood, that there will be a contest down the road.  They're looking to take steps so that their wishes don't get diverted by a trial or litigated outcome.
PW:  Can you share an example of such a step?
Baker:  One thing that plaintiffs will use to attack estate plans and documents is the notion that the family office was the go-between, the attorney wasn't really in communication with the person who signed the will or trust, and that person didn't really understand it.  So we insist-with some degree of frustration to family office managers-on having much more face-to-face communication with the client herself than is customary.  As the attorney who drafted the documents, if you are called on to testify and all you can say is, "I never did actually talk to Ms. Client," it sounds bad.
PW:  Your group lives in two worlds, being a hybrid of two practice areas.  Your attorneys must possess an unusual combination of skills.
Baker:  Our lawyers can step into a court-they know how discovery works and other things that are common in any controversy-and also thoroughly understand all the estate and trust aspects.
PW:  Other large law firms don't have groups like yours.  How do they handle this work?
Baker: They take a civil litigator who was arguing an antitrust case yesterday and throw him a complaint about fiduciary conduct. But this area is so ingrained with tax and other technical aspects that I think it's very difficult to just dabble in it.  We come up with what I tell clients are the three S's-strategies, solutions and settlements-that other lawyers can't even really conceptualize without this body of cross-disciplinary knowledge and experience.