President's Perspective

No Longer Granny, Now It's Lawyers

By Steven R. Sorenson

It's no longer the "let's send granny to jail" rule; now Congress has dutifully listened to its constituents and the rule has become "let's send granny's attorney to jail." The Balanced Budget Act of 1997 (H.R. 2015) and section 5755 of the Senate Budget Bill now make it a crime for anyone to:

"[f]or a fee knowingly and willfully counsel or assist an individual to dispose of assets (including by any transfer in trust) in order for the individual to become eligible for medical assistance under a state plan under Title XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under 1917 (c)."

This represents a departure from common sense. We now have a law that makes it a criminal act to advise a client to do something, which from the client's perspective is lawful. This unprecedented effort by Congress deprives people of their legal right to receive financial and personal advice from their attorney. It leaves lawyers in the precarious position of facing an uncontrollable risk since it is the subsequent action of the client and not the action of the lawyer that provides the basis for determining whether criminal behavior exists. Even if a lawyer makes no suggestion, which at the time would create divestment and perhaps ineligibility, changing conditions in the client's life could result in financial realignments causing an ineligibility period and thus criminal sanctions against the lawyer.

No other profession has seen its freedom of speech rights eroded so dramatically. While health-care providers may complain about limitations being placed upon their ability to discuss certain medical procedures, nowhere do they face criminal sanctions. Congress's decision to solve program failures by attacking the legal community represents the continuing "scapegoat" mentality facing legal professionals. For instance, there is no effort by Congress to jail accountants for advising clients on current tax laws that will result in preserving a client's wealth. But, if the advice is from a lawyer and it relates to gifting or trust creation, a cell could be waiting.

Why criminalize legal counseling? The time has come for the legal community to unite. We need to stop this erosion of our First Amendment rights. We need to fight to preserve our right to practice our profession and our clients' right to receive the best possible advice. Congress and administrative agencies can no longer be allowed to continue covering up weaknesses of legislation by blaming lawyers for advising clients on how to avoid the consequences of a rule or a statute.

This past spring several State Bar of Wisconsin leaders went to Washington, D.C., in hopes of turning the tide on this type of legislation. While we may have been successful in saving granny, we obviously were unsuccessful when it came to preserving granny's right to obtain sound legal advice. We have been joined in our efforts by the American Bar Association, the State Bar Elder Law Section and the National Academy of Elder Law Attorneys. Each of these groups is working diligently to protect the rights of both lawyers and their clients. To date, there has been no significant success.

The real problem is bigger than this one issue. Lawyers need to regain their political clout. Lawyers need to step forward and fulfill their obligation to serve and protect democracy. It was not so long ago that lawyers dominated the halls of Congress and our state capitols. The Constitution, the Bill of Rights, state constitutions and the other rules by which we live were crafted by members of the legal profession. For many years these same legal professionals preserved and protected the basic legal rights of all U.S. citizens. Now we find ourselves looking in from the outside. Today lawyers spend more time and money complaining about or challenging legislation than we do formulating and preserving it.

We need not dwell on the past. We do need to figure out why lawyers no longer dominate our political process. We need to reaffirm our commitment to protecting the fundamental principles of equity, justice and fairness. This can be done both individually and as a State Bar of Wisconsin member. Part of the 1997-98 action plan to be proposed to the Board of Governors will involve encouraging practitioners statewide to become more involved in government and the related political process. The State Bar will take a proactive approach to solve the problem.

As a former member of the Fond du Lac County Board, as a part-time village attorney and as a dedicated Bar leader, I know the importance of individual lawyer efforts. Despite many assertions to the contrary, lawyers are respected when they present the facts and defend the rights guaranteed under the Constitution. It can be difficult for practitioners to find time in their busy schedules - with the demands of family and law practice - to dedicate time to the legislative or political process, but we must.

If we do not become involved, do not attempt to make a difference, we will remain the scapegoat of governing bodies. We will continue to see the erosion of our right to practice law in a free and democratic forum. The great rush for efficiencies in government will continue to dominate the day, unless we accelerate our commitment to individual rights and the democratic process.

Our elected officials and appointed bureaucrats will not attack their own institutions to reduce spending or create efficiencies; they will go after the unrepresented or the under-represented. This undoubtedly means that the judiciary and other ancillary parts of the justice system are fair game. Reducing access to the courts, eliminating the right to trial by jury, decreasing the number of public defenders, increasing mandatory sentencing and eliminating legal resources are all part of this years' legislative attack on the justice system.

President-elect Susan Steingass will head up an effort to assist the judiciary with their battle to preserve the quality of our courts. This effort and other Bar initiatives can succeed only if we can find a more receptive audience in our county, state and federal legislative and executive bodies. A goal of the State Bar is to increase our numbers in elected and appointed positions statewide by more than 100 percent during the next two years. We need to institutionalize an affirmative action program to keep lawyers actively involved in our representative democracy. We need lawyer legislators.

The Title XIX law is a wake-up call to all of us. We have let down our guard and now we need to reverse the trend. Our clients need and have the right to demand qualified, confident legal counseling. This can be done only if lawyers are free to express their opinion without fear of harassment. Claims of overzealous lawyers, courtroom inefficiencies and fiscal restraint are nothing more than masks covering the real problems in our local, state and federal governments. These harangues by legislators are very popular with the public, but popular is not always right. We need to stand tall, contact our legislators and consider seeking state or local office, or at least participate with other lawyers seeking office. The more governing bodies are exposed to legal knowledge, the more likely that they will do what is right and just.

Wisconsin Lawyer