Today, one of our GunDocx Bronze Edition clients told us about a Gun Shop that reviewed his GunDocx Trust, then told him not to use it and to use theirs instead. We are told that this is a regular pattern in all their stores and that they regularly tell patrons NOT to use an attorney.
Is this Gun Shop in the wrong? Let me present the case and you be the judge.
THE STORY
Our client took his newly minted GunDocx Trust into a local gun shop to purchase his silencer. A gun shop employee, possibly manager, said that the trust was “no good” and to use the shop’s version instead.
THE GUN SHOP’S REASON
The gun shop employee told our client that use of the word “GRANTOR” instead of “SETTLOR” in the GunDocx Trust, which referred to our client, was incorrect language that made the trust invalid.
THE LAW
The words in question are used to mean the SAME THING in a trust context. Settlor, Grantor, Maker, Creator all mean the person who establishes the trust. Call him or her the “setter-upper” if you want to. While this phrase may not be a technical legal term, it gets the point across and is in keeping with the trend to use clear language in legal drafting.
THE RESULT
Our client, who walked into the store with a perfectly valid purpose-built GunDocx Trust was coerced into signing a generic and poorly written “trust” in order to purchase his suppressor. When he called to let us know and to ask our advice, we had to tell him that he was the victim of incompetent advice. We offered to fix this for him at no charge to him since he did nothing wrong but was harmed by the gun shop’s actions. We will immediately address this with the gun shop and will help them understand the risks they are running.
Sadly, this appears to be a pattern, and it does not bode well. http://www.guntrustlawyer.com/2010/07/gun-store-provides-invalid-tru.html.
WHAT’S THE PROBLEM, YOU ASK?
We last reviewed this gun shop’s trust several months ago and have done so again. It remains a generic, fill-in-the-blanks and conventional living trust. This type of trust is NOT A GUN TRUST. It contains no guidance on the ownership or transfer of NFA firearms. Worse, the language it does contain is problematic for a Trustee holding NFA firearms. The Trustee who follows certain of its terms risks committing a felony. REMEMBER, YOU OR YOUR LOVED ONES WILL BE SERVING AS THE TRUSTEE! This trust puts you, and them, at risk.
For example, the trust does not make clear who a beneficiary is, or who can access or possess federally regulated firearms, putting THAT person at risk of committing a crime. Need we say more? The truth is, and at least two BATFE Supervisors agree with me on this, that ANY conventional living trust, even a well-written one which this is not, almost universally contains provisions that are inconsistent with owning, using, sharing silencers or any NFA firearm.
THERE’S A REASON WHY GUN SHOPS SHOULD NOT GIVE LEGAL ADVICE.
First, they put you at risk. They are not attorneys overseen by and subject to discipline by the Supreme Court.
Second, well IT’S A CRIME IN WASHINGTON STATE for nonlawyers to practice law. See above.
It’s America, and we honor free speech. Lawyers exist to protect your rights and help you accomplish your goals within the law. Our firearms clients mean a lot to us and we are committed to helping them and protecting their interests. Gun shops, when you elect to act as their lawyer, you are liable, you are accountable, to the same degree we are. It does not even matter if you had an attorney approve your trust. That is called “assisting the unauthorized practice of law.” Arguably you committed a crime, exposed yourself to civil suit, and your attorney may have violated the Rules of Professional Conduct as well.
Giving legal advice when by a person not a licensed attorney, Count 1, is a Gross Misdemeanor. This can be saying something like “our trust is what YOU need” or as simple as telling someone how to fill out a legal form that affects their legal rights. And if the person says “put your name here” this is Count 2, “enter the date there” this is Count 3, etc. Guess what – Counts 2 and beyond become Class C Felonies even if tacked onto Count 1!
On the civil side, unauthorized practice of this kind is also a per se violation of the Consumer Protection Act. Finally, there apprears to be a proper civil claim against persons who intentionally interfere with a business relationshp, such as that between attorney and client.
GUN SHOP – DO YOU GET THE PICTURE?
PROTECTING GUN OWNERS IS WHAT THIS IS ABOUT
What if a problem occurs with BATFE now or later. How far can or will your gun shop or that employee go to deal with it? You already paid for your suppressor… it’s YOUR problem. What if you are accused of owning contraband due to a mistake in your paperwork caused by such a gun shop… (we have that case right now and are working with BATFE to resolve it… in month NINE…)
This summer, BATFE said that a trust can be deemed invalid EVEN AFTER the BATFE approved the transfer. Did you know that when BATFE approves a transfer that they DO NOT represent that the trust is valid? I spoke the the Supervisor of the Documentation Section at NFA Branch, and also to the Washington State Document Examiner for BATFE, at length, about what they do relative to trusts and what they do NOT do.
Feel free to call us at NW Gun Law Group any time you have a gun trust question, even if you are not yet our client. We will do our best to help you stay on the right track.
