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.
Full Speed Ahead
August 3, 2008
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