Over the past few years interest and investment in Bitcoin and cryptocurrencies has exploded. What only 10 years ago was a fringe idea on some remote parts of the internet is now a multitrillion dollar market, trading 24/7, with new use cases and applications appearing on a weekly basis. Cryptocurrency, in one form or another, is here to stay. A new, decentralized financial market is emerging right in front of us and it’s time for legal and financial professionals to catch up.

I’m thrilled to announce that Lindsey MacCarthy LLP have asked me to join their firm with the goal of establishing a new practice that ties together the traditional legal areas of tax and estate planning with the new domain. I call this new practice Digital Asset Planning.

I’ve been involved in holding, trading, researching and writing about cryptocurrency since 2016, the year I passed the bar and became a lawyer. My interest is borne out of a belief that, at scale, Digital Assets (Bitcoin, Ethereum, NFTs, etc.) can significantly reform (or overthrow) a banking system that is inefficient, bloated, and predatory. It has the potential to provide financial services to the nearly 2 billion people on our planet who are ‘unbanked’. It will open capital markets to anyone with a cell phone, not just established investment funds.

For any financial ‘product’ or asset to succeed at scale, tertiary services based around those assets need to be established. A new ecosystem of entrepreneurs, traders, miners, stakers, investors, and businesses need expertise on how to minimize their tax burden and ensure that their assets, digital or otherwise, will not be lost if they pass away.

Unfortunately, almost the entirety of wealth professionals are not familiar with blockchain technology, the Decentralized Financed (DeFi) ecosystem and the unique way that value is transacted through decentralized networks. Whether they are lawyers, accountants, bankers, wealth advisors or tax authorities, almost all their awareness of Digital Assets comes from major media outlets; mostly articles on how the bitcoin price has dramatically gone up or down. They have not interacted with the network, they have not dealt with ‘stuck’ transactions, they don’t understand the immutability of the chain, they don’t appreciate the ramifications of a decentralized contract.

Digital Asset holders deserve to have experts who can truly speak their language, who understand self-custody, who appreciate the ‘wild west’ nature of DeFi and the benefits and risks it brings. Most importantly, Digital Asset holders deserve professionals who are as passionate about the philosophy underpinning Digital Assets as they are.

I plan to offer three major services in my practice:

1. Estate and tax planning — Provide traditional estate and tax planning services to clients in British Columbia, Canada that incorporates Digital Asset Planning to ensure alignment with the client’s estate plan.

When completing Digital Asset Planning, it is crucial to align the intentions of the client’s succession plan with the physical security and location of digital keys (a theory I am calling “Digital Asset Alignment”). A will that appoints an executor or trustee who doesn’t have access to digital keys will not be an effective plan. Likewise, leaving Digital Assets to a beneficiary who is not able to receive them or who is not implementing sufficient security themselves is a risk to the client’s digital asset holdings.

I will work with beneficiaries or other trusted members of the succession plan to ensure they are adequately prepared to handle the Digital Assets in the event that it is required

2. Digital Asset Consulting — As a lawyer in British Columbia, I am not able to provide legal advice on the drafting or effect of legal documents outside of my home jurisdiction. If you are working with a lawyer, accountant, or other professional in your local jurisdiction who is not fluent in the management of Digital Assets, I can work with that professional to make sure that the plan they are putting in place will align with the realities of immutable Digital Assets.

In these situations, I am able to act as a translator, making sure that the unique needs of Digital Asset holders are presented to the financial professional in a way that allows that professional to better align the plan they are creating with their client’s needs. I may also be able to provide the client themselves with advice on physical security of private keys, e.g. when a multisig wallet may be advisable and how to assign multisig keys in a way that both protects the Digital Assets and allows seamless transfer of those Assets to the desired beneficiaries. In such cases, I would not be able to provide any legal advice on how such a plan may be interpreted in the client’s home jurisdiction.

Likewise, I am happy to work with lawyers, accountants and other professionals on files that involve digital assets, including litigation matters. While I am not able to provide legal advice in such circumstances, I remain able to describe Digital Assets, blockchains, and decentralized networks in ways that lawyers will understand, highlighting pitfalls and distinctions that lawyers will have to provide information for.

3. Digital Asset education for professionals — Lastly, I recognize that it is crucial to expand the capacity for wealth and finance professionals to deeply understand digital assets, their unique characteristics and how they interface with existing finance, estate planning, and tax norms. I have developed a 1.5 hour course, “The Law of Bitcoin”, that brings professionals up to speed with the basics of Digital Assets and the Bitcoin and includes each participant actually receiving and sending Digital Assets.

If training on more advanced or detailed issues are required, I can create a custom course to focus on the those needed issues (e.g. a DeFi Deep Dive).

One crucial point to all of the above is that as a lawyer and advisor, I will never hold, store, request or require my client’s private keys. It has been a common practice to store information at a lawyer’s office that becomes accessible upon death. When it comes to Digital Assets, the risk of key mismanagement is too great for a lawyer to ever hold a client’s private keys. It exposes the client to significant risk storing their private keys in a place they are not in control of. It also exposes lawyers to significant liability if a second set of private keys were to exist and the wallet was emptied, leaving no trace.

This month marks the start of something great. I’m excited to be able to proudly work on my passion for Digital Assets and am very grateful to the partners at Nerland Lindsey LLP for being open to new, bold ideas. I hope it also marks the start of something great for the many Bitcoiners, Ethereans, and passionate crypto holders, who desperately need professionals who align with their philosophies and deeply understand their needs.

Please also pay attention to this space where I plan on tackling some of the interesting issues about the intersection of Digital Assets and the law. The majority of media coverage on this intersection has focused on securities related issues such as SEC rulings. More personal areas of law such as estate planning, divorce, bankruptcy, personal tax planning, and trust law have, to my knowledge, been hardly explored.

If you want to chat about how I could help you and your team get comfortable with Digital Assets, feel free to DM me on Twitter or e-mail me at gcosteloe@nerlandlindsey.com.

Jacob Siegel’s recent essay for Tablet entitled “The New Truth” manages to capture something important about the current state of discourse in America. Essentially, the marketplace of ideas is beholden to a despotic elite, and is being used to proselytize a new moral order. This moral order is perpetually in flux and is subject to ongoing revisions from its adherents. The only constant is that current systems of morality have failed and are, in fact, perpetuating immorality.

The important question of how we got here has yet to receive a satisfactory answer. Yes, clear and early warning signs about the growth of this new culture on campuses were missed or dismissed. Yes, the hard sciences are becoming increasingly politicized and pressured to accept that “other ways of knowing” are at least as valuable as the scientific method. But none of the existing answers properly explains how the national discourse has surrendered to the ascendant dogma of what Seigel’s Tablet colleague Wesley Yang has called the successor ideology:

The successor ideology is what happens when ideas meant to encourage critical self-reflection become a part of an echo chamber and grow increasingly divorced from reality.

The list takes on the coloration of every romantic, reactionary, and left-wing shibboleth ever created.

- Wesley Yang (@wesyang) May 21, 2019

What has been missing from this discussion is an acknowledgement that Americans are not engaged in truth-seeking conversations about complicated issues. Instead, they are litigating them. Law students are taught that what is legal and what is moral are different questions. A society’s laws may be a rough approximation of what that society deems moral, but these two considerations often diverge in practice, whether in law or in everyday life. It is certainly immoral to cheat on your spouse, but it isn’t illegal. Exceeding the speed limit is illegal, but there is nothing necessarily immoral about it. During the Holocaust, families that took in and sheltered Jews were breaking the law, while the soldiers and citizens reporting and executing them were following it.

This distinction is frequently (and understandably) lost on the general public. We expect the laws we follow to align with our general moral compass. As a result, we are shocked when legal outcomes do not align with moral ones-the O.J. Simpson verdict may have been legally valid but it was also morally scandalous. Nevertheless, understanding the distinction between morality and legality can help us understand why lawyers act the way they do-they are trained to operate in a world where-aside from legal ethics and professional obligations-the only rules that apply are legal ones.

A lawyer is not hired to find the truth or the morality of a case, but to advocate on behalf of his client. To do that, he will use every argument and legal tool available. In fact, he has an ethical obligation to do so. The American Bar Association explicitly requires a lawyer to “zealously assert the client’s position under the adversarial system.” When a lawyer enters the courtroom, the objective is to win, not to determine truth or morality. Where truth and, in rarer cases, morality are determined, they are by-products of the adversarial system. Defence lawyers frequently advise their clients not to take the stand in criminal cases, even though doing so would surely improve the truth-finding ability of the court. But the objective is acquittal, and if a client’s testimony is likely to jeopardize that goal, he will be advised not to testify under oath.

This approach can lead a lawyer to take uncompromising positions that fly in the face of reasonableness and common sense. He might attack the credibility of a physician whose findings do not help his client, or he may attack a witness’s credibility to undermine the reliability of unhelpful testimony. If it is expedient, a lawyer may even defend two opposing propositions at once or disguise an extreme claim as a perfectly reasonable-and indeed the only moral-one. Most importantly, in the adversarial system, a lawyer rarely concedes an argument to the opposition. When filing a civil defence, it is common to simply assert that, “The defendant denies all statements made by the plaintiff except for those expressly admitted herein.” Why agree to uncontroversial timelines, correspondence, facts, and definitions if you can force your opponent to do that work and possibly make a mistake or omission in the process. This tactic can sometimes produce absurd results:

Nevertheless, the court system generally works (despite the occasional absurdity) because the process is overseen by a judge who understands the rules of the game and who decides what is material to the outcome of the case and what is smoke and mirrors. His job is to call balls and strikes in the courtroom, ruling which arguments are in and out of bounds. Lawyers like to joke that a ruling is probably correct if both sides are equally upset by it.

Truth-seeking discussions, on the other hand, do not operate in a litigious manner. We don’t want our morals, governmental policies, science, and understanding of society to be a matter of who is the better litigator. The liberal tradition is intended to allow truth to emerge from exploration and good-faith criticism that earnestly seeks an accurate representation of reality and not the promulgation of a particular position. Our survival and success as a species relied on uncovering the workings of the world so that we could navigate it with greater knowledge and confidence. We must take the universe as it is; we cannot will a preferred alternative into existence.

The current state of discourse, however, resembles a litigious battle where the only goal is victory. No quarter is given and no concession is made, since to do so would move the dialectic towards the kind of discussion in which ideas are presented, explored, and accepted or rejected based on their evidentiary support. The arguments taking place on online platforms and across the media and parts of academia are ruthless pitched battles in which facts only matter to a participant if they support his position. If a combatant has a personal flaw or an embarrassing tweet in their archive, expose it and humiliate them until they retreat. If they are not the correct race, gender, or class to speak on a topic, insist that their opinion be excluded from consideration. This is litigation 101: Discount or disqualify those who oppose you, regardless of the merits of the evidence or arguments they possess.

But outside the legal system, there is no authority to right the ship and call out foul play. There are no rules and no consequences for playing dirty. Lying, slandering, doxing, deplatforming are all justifiable tools in the Internet litigator’s toolbox. The only consequences are for the losers, whose careers and personal lives are too often thoughtlessly sacrificed in pursuit of victory. And the grim spectacle of reputations and livelihoods being torn to pieces online offers an effective deterrent to anyone else thinking of entering the fray. This is why many of those who might still defend liberalism prefer instead to remain silent.

This state of affairs is especially sad because understanding the complexities of issues like race, policing, drug reform, gender rights and relations, accessibility, and representation remains important. Polls indicate that the general public is more alive to the issue of race in America than ever before-I hope the opportunity this presents is not squandered by the sanctimony of those who now hold the reins of cultural power. Before joining the battle, Americans of all political persuasions should ask themselves: “Am I entering this conversation to get closer to truth, or am I only here to destroy the opposition?”

Image: Fredric March and Spencer Tracy in Inherit the Wind (1960).

Originally published at https://quillette.com on July 6, 2020.