One interesting question that came up today is “who is a probate attorney?” Someone was asserting in an email while one attorney was a “probate attorney” another attorney was not a “probate attorney.”
The correct answer is that no attorney in Illinois is a “probate attorney.” With the exception of Admiralty and Patents, we do not have specialty attorneys in Illinois because it is believed that this would confuse the public. All attorneys that are admitted to the Illinois Bar are considered competent to practice in all areas of law, and should have a competent basic working knowledge of the law in all areas except for Admiralty and Patents.
Admiralty and Patents are traditional areas for a specialty. The Federal Courts have exclusive and original jurisdiction over all patent and copyright matters. You cannot bring a matter involving the validity of a patent or copyright anywhere but Federal District Court. If you allege federal trademark infringement under the Lanham Act, you may, but are not required to, bring your case in Federal District Court.
Other attorneys are allowed in Illinois to say they “concentrate in” or “prefer to practice” in particular areas of the law, and perhaps 90% of their business is in those areas–but they are never, never allowed to say they specialize in a particular area of law, including probate.
Interestingly enough, if you practice patents, trademarks, copyrights, trade dress, if you limit yourself to the federal portion of the law, you can practice anywhere in the 50 states and 7 territories in the US and will not run afoul of “unauthorized practice of law” prohibitions. This has been tested in all of the state and territories. If you have been admitted to the US Patent Bar, it is considered federal and exclusive in nature, allowing Patent Attorneys to practice anywhere–just in case you are interested.
Attorneys are not allowed to have blinders on. They should know whatever area they practice in–including our girlfriends and boyfriends running around in the Probate Courts of Illinois, that a summons and complaint MUST be properly prepared and personally delivered to the Respondent in a Petition for Guardianship. All close relatives, defined as adult siblings, parents and children MUST receive written notice of the date, time and place of hearing, served by Petitioner, regarding a Petition for Guardianship.
These requirements are not strenuous, unique or difficult to understand. They impose no undue hardship upon any party. The preparation and proper service of summons, complaint and pre-litigation notices are not unique to Probate, and can be found in many, many areas of the law. Attorneys are expected to look up and adhere to pre-litigation requirements and notices. Attorneys are expected to understand that some, but perhaps not all, of pre-litigation notices and tasks may result in a lack of jurisdiction if serious enough.
I hope this dispels any misunderstandings of what a “probate” attorney is compared to other attorneys in Illinois. There actually is no such animal. All Illinois licensed attorneys are expected to have a working knowledge of basic areas of the law, from contracts, constitutional law, some criminal law, to wills, estates and probate, and some divorce laws and basics, etc. so they can at least talk knowledgeably to clients and send them to other attorneys that might have more expertise in certain areas. The concept that “probate attorneys” know what jurisdiction is any more than any other litigating attorney is preposterous. Every Illinois attorney, prior to filing a complaint, petition or whatever should carefully review the current statutory requirements each time prior to filing anything in court. We make check lists and check them several times. We make synopses of our cases and of the laws and requirements to file each time we file something.
If an attorney does not do all of this, she or he is likely to find that they have been bit in butt by opposing counsel or even the judge. That’s not a place you want to be in litigation. One of the absolute worst places is lack of jurisdiction–a place no attorney wants to be at.