PRESIDENT’S MESSAGE  No. 3 

By Bruce Stone, Coral Gables, Florida

October 2015

Greetings to all of my Fellows.

A proposal to change the criteria for election of Fellows to the College will be presented to the Board of Regents for a vote at its meeting in Monterey on October 18, 2015. The proposal would allow a lawyer who is currently licensed to practice law, who has at least ten years’ experience in trusts and estates, and who meets all of the requirements to be elected as a Fellow (well-deserved outstanding reputation in the field of trusts and estates, exceptional skill in trust and estate law, and substantial contributions to the field of trust and estate law by lecturing, writing, teaching, or being involved in bar activities or the enactment of trust and estate legislation) to be admitted as a Fellow even though that lawyer is not employed in the private practice of law – but only if she or he serves as fiduciary trust counsel for a bank or trust company and her or his primary role is to provide trust and estate counsel comparable in breadth, tone and independence to the advice provided by a Fellow in the private practice of law.

What is the origin of the proposal and why it is coming to the Regents now? Many of you will remember the Strategic Planning Task Force, which was formed at the 2004 annual meeting, and which presented its final report to the Regents at the 2006 fall meeting. Among the many things considered by the Task Force in its discussions were the long-term consequences to the College as a result of Fellows leaving the private practice of law for employment by banks and trust companies, other financial institutions, family offices, charitable and educational organizations, the government, and other fields of endeavor. Those discussions covered sensitive areas. Would the nature and character of the College – its very collegiality – be detrimentally affected by allowing Fellows who are no longer in private practice to continue to participate in the operations and life of the College? The Task Force recommended that the College’s bylaws be revised to require transfer to inactive status for any Fellows other than Academic and Judicial Fellows who leave the private practice of trust and estate law, subject to reinstatement to active status as a Fellow upon returning to private practice. The proposal would have grandfathered Fellows who had left the private practice of law prior to its effective date. While many of the Task Force recommendations were adopted and implemented by the College, the recommendation that Fellows who leave the private practice of law be placed on inactive status was not adopted.

When the Strategic Planning Task Force was disbanded, the Long Range Planning Committee was charged with following through on the recommendations of the Task Force, and on picking up where the Task Force had left off on other areas. Over the course of the last several years, the Committee has considered long-term trends in the trust and estate legal profession, and how those trends will affect the College. As an outgrowth of those discussions, a subcommittee chaired by Ron Aucutt and Susan House was formed to consider whether lawyers who are “like us” and who “do what we do” in non-private practice employment settings should be eligible for admission as Fellows. The subcommittee submitted its proposal to the Long Range Planning Committee at the 2015 summer meeting in Quebec. The Committee approved the subcommittee’s proposal.

Since the meeting in Quebec, the Long Range Planning Committee proposal has been reviewed by the Bylaws and Manual Committee, the Membership Selection Committee, and the Executive Committee. Each of those committees has spent a lot of time discussing the proposal, and a number of technical and editorial changes have been approved. The Executive Committee has unanimously approved the final proposal being submitted to the Regents, with the request that they discuss and vote on it at the upcoming meeting in Monterey.

The proposal raises thoughtful policy considerations that deserve attention and analysis. While under the College’s bylaws the proposal is within the purview and authority of the Board of Regents, I believe it is important to bring the proposal to your attention in advance of the Regents meeting in Monterey. The Regents will be receiving a detailed description and analysis of the proposal. The following is a more informal summary of the proposal.

So what does the proposal do? It does not create a new class of Fellows. Instead it extends the eligibility for admission as a regular Fellow to lawyers who perform some of the same functions as lawyers who are in private practice, but who are employed by a bank or trust company. The lawyer must function as a lawyer in providing trust and estate counsel comparable in breadth, tone and independence to that provided by a Fellow in private practice. But not all services provided by trust and estate lawyers in private practice that count toward qualification as a Fellow will count if provided by lawyers employed by a bank or trust company.

It may be helpful in understanding the proposal to have some examples presented in the form of questions and answers.

Will a trust officer who has a law degree be eligible to become a Fellow? Not unless the lawyer’s primary role within the bank or trust company is to provide trust and estate counsel similar to that provided by a Fellow in private practice, and the lawyer satisfies all other requirements for admission. For example, if the bank or trust company lawyer spends the majority of his or her time administering estates or trusts, the lawyer is not providing trust and estate counsel and is not eligible for admission. This is in contrast to a lawyer in private practice whose primary role is administering estates and trusts. A lawyer whose primary responsibility is to administer estates and trusts will be eligible for admission as a Fellow only if that lawyer is employed in private practice.

Can a lawyer who leaves the private practice of law to take a job with a bank or trust company be admitted as a Fellow? Yes, if the lawyer has at least ten years’ experience as a lawyer in the active private practice of trust and estate law, or as fiduciary counsel with a bank or trust company, or a combination of the two. For example, a lawyer who works for eight years in estate planning and administration with a law firm, and who takes a job as fiduciary counsel with a trust company, will be eligible for admission after the lawyer works for two years as fiduciary counsel for the trust company. But if the lawyer’s job with the trust company is to administer estates and trusts (the same thing the lawyer did in private practice), or to make investment decisions, or to serve as a business development officer, the trust company lawyer will not be eligible for admission, regardless of the number of years she or he works with the trust company.

Can a lawyer employed by an investment management firm who spends all of his time advising lawyers in private practice on structuring estate plans for clients of the investment management firm be admitted as a Fellow? No. Only lawyers who are in private practice or who serve as fiduciary counsel for a bank or trust company are eligible for admission.

Of course, there are specific procedures for implementing the proposal, if adopted, in the proposed amendments to the Bylaws and to the Requirements and Procedures for the Election of Fellows. Those documents and a memorandum explaining them will be distributed as part of the agenda materials for the meeting of the Board of Regents.

I want to thank all of our Fellows who have worked so long and so hard in the deliberations of the Long Range Planning Committee, and those on the Bylaws and Manual Committee, the Membership Selection Committee, and the Executive Committee who have worked to refine and shape the proposal into the recommendation that has been submitted to the Regents. I also thank our Regents for the time they will spend on this, both in reading and studying the proposal, and in the careful deliberations that will occur at the meeting. As I have said before, the work of the College is done by volunteers, not a single one of whom is paid anything for the time we give. We do what we do from a sense of duty to each other, and from a love for the College. With that in mind, I look forward to the collegial deliberations that we will have in Monterey.

Thanks to each of you for what you do for the College.

Bruce