Justia Legal Ethics Opinion Summaries

The Court of Appeal affirmed the trial court's award of attorney fees and costs in this dispute over the management and the distribution of monetary assets of a family trust. The court held that the trial court properly applied the substantial benefit theory, an offshoot of the common fund doctrine, in making its award of fees from trust assets. In this case, substantial evidence supported the finding that the litigation substantially benefited all beneficiaries and that litigation preserved trust assets when the accounts were frozen. The court explained that the litigation preserved a common fund for the benefit of the non-participating beneficiaries. View "Smith v. Szeyller" on Justia Law

Walter owned and operated Control Master Products, a wire and cable business. After Walter’s death, Plaintiffs filed a petition to determine their status as beneficiaries under Walter's trust and to challenge Youngman’s right to inherit. Youngman, Walter’s long-time friend and tax attorney, had drafted Walter’s trust. The petition sought to have a condition, which made certain gifts contingent on being employed by Control at the time of the death of Walter and his spouse (Verla), stricken on various grounds, including impossibility. Walter had sold the company’s assets and its employees had been terminated. The probate court concluded the dispute was not ripe because Verla’s death had not occurred. On remand, the probate court found that Youngman and his family were “disqualified from any gift under the trust,” that Ostrosky’s gift lapsed because she had retired before the sale, and Schwan’s and Johnson’s gifts “remain valid and enforceable, but only after Verla[’s] death.” The court of appeal reversed and remanded for findings as to whether Ostrosky’s work for Custom satisfied the trust’s employment condition and modified the trial court decision so that the gifts to Schwan and Johnson remain valid and enforceable, only after Verla’s death, and only if they survive Verla. The court otherwise affirmed. View "Schwan v. Permann" on Justia Law

The chancery court examined the principles underlying quantum meruit and found that Vincent Castigliola and David Kiyhet, attorneys for the estate of Dane Eubanks, should have been awarded attorneys’ fees from two minors out of a settlement they, and only they, obtained. After remand from the Mississippi Supreme Court, the chancery court again heard arguments as to whether Castigliola and Kiyhet should be awarded attorneys’ fees from the two minors based on quantum meruit out of the settlement they obtained. The remand required that the chancery court make specific findings of fact. This time, without making any findings of fact and without any contradictory evidence being introduced, the chancery court reversed course and found that the factors for quantum meruit were not met. Because the chancery court failed to follow remand instructions by failing to make findings of fact, and, because no contradictory evidence was adduced suggesting the factors for quantum meruit were suddenly not met, the Supreme Court reversed and remanded the case for a further determination of attorneys’ fees. View "In the Matter of the Estate of Dane Richard Eubanks, Deceased" on Justia Law

Cortese is the daughter of Francesca, and the stepdaughter of Robert. Attorney Sherwood handled their legal matters under Robert’s direction. Cortese alleges Robert promised her that, upon his death, “he would treat her equally as his other children.” Sherwood drafted Francesca’s will and represented Robert as executor during the administration of Francesca’s estate after Francesca’s 1997 death. Robert was worth $2 billion; Francesca’s estate was valued at $2 million. Robert became the trustee and life beneficiary of Francesca’s trust. Cortese and her sister were remainder beneficiaries. “Relying on Robert’s promises and [Sherwood]’s representations, [Cortese] did not challenge Robert’s acts as executor.” In 2008, “in reliance on promises,” by Sherwood and Robert, Cortese “reluctantly agreed to terminate the Trust … without the advice of counsel.” Cortese alleges the termination favored Robert, causing Cortese and her sister to bear unnecessary capital gains tax. After Robert’s 2016 death, Cortese was not a beneficiary of Robert’s estate. Cortese alleged breach of fiduciary duty against Sherwood and Topham, as co-trustees of Robert’s trust; third-party liability for breach of trust against Sherwood; and return of trust property against both. The court dismissed the second claim against Sherwood, apparently for failure to comply with Civil Code 1714.10: A party must establish a reasonable probability of prevailing before pursuing a “cause of action against an attorney for a civil conspiracy with his ... client arising from any attempt to contest or compromise a claim or dispute.” The court of appeal agreed. Cortese alleged Sherwood conspired with Robert and induced her to forego challenges to Robert’s actions--conduct arising from the compromise of a dispute. No statutory exceptions apply. View "Cortese v. Sherwood" on Justia Law

Philadelphia police officers shot and killed Purnell, who died intestate. Purnell’s minor daughter is the sole beneficiary of the estate. Murray, Purnell’s mother, hired an attorney and obtained letters of administration to act on behalf of her son’s estate. Murray filed a lawsuit on behalf of the estate alleging excessive force against the city and the officers under 42 U.S.C. 1983. The district court granted the city summary judgment but allowed her claims against the officers to proceed to a jury trial. The officers' defense was that they had used deadly force in self-defense. The jury returned verdicts in favor of the officers. Murray filed a pro se notice of appeal. The Third Circuit ordered the pro bono appointment of amicus curiae to address whether Murray may proceed pro se on behalf of Purnell’s estate. Under 28 U.S.C. 1654, “parties may plead and conduct their own cases personally or by counsel” in the federal courts. Although an individual may represent herself pro se, a non-attorney may not represent other parties in federal court. The Third Circuit then dismissed Murray’s appeal: a non-attorney who is not a beneficiary of the estate may not conduct a case pro se on behalf of the estate. View "Murray v. City of Philadelphia" on Justia Law

Kenneth M. (Matazo) and Kazu Tagami were grantors of the Trust. Matazo and Kazu had three children: Kenneth K., Barbara, and Charles. A family dispute arose when the settlors suspected the prior trustee, who was Barbara's son, of embezzling funds from the Trust. Matazo and Kazu removed the prior trustee and appointed professional fiduciary Claudia Powell as trustee. Attorney Nancy Ewin drafted the restatement of the Trust; Powell hired attorney Kent Thompson to represent her in her fiduciary capacity as trustee of the Trust. A physician certified in March 2012 that Kazu was unable to make her own financial and medical decisions due to medical issues. Matazo died in August 2012. Kazu died almost three years later, in June 2015. Charles challenged two probate orders: (1) settling, allowing and approving the third and final predeath account and report of trustee (Third Account) and finding Charles objected to the Third Account without reasonable cause and in bad faith, which justified an award of costs and fees pursuant to Probate Code section 17211 (a); and (2) an award of attorney fees pursuant to Probate Code 17211 requiring Charles to pay these fees from his share of the Tagami Living Trust or personally if his share was inadequate. The Court of Appeal disagreed with Charles' contentions in both appeals and affirmed the Probate Court's orders. View "Powell v. Tagami" on Justia Law

At issue before the Michigan Supreme Court in this case was whether the rebuttable presumption of undue influence was applicable when the decedent’s attorney breaches Michigan Rule of Professional Conduct (MRPC) 1.8(c), which generally prohibited an attorney from preparing an instrument giving the attorney or his or her close family a substantial gift. Appellants argued that a breach of MRPC 1.8(c) automatically rendered an instrument void, while the appellee attorney argued that, rather than an invalidation of the instrument, a rebuttable presumption of undue influence arose in these circumstances. After considering the applicable provisions of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and the underlying principles of probate law, the Michigan Supreme Court determined a rebuttable presumption applied to these circumstances. "[T]he adoption of MRPC 1.8(c) has no effect on this conclusion because a breach of this rule, like breaches of other professional conduct rules, only triggers the invocation of the attorney disciplinary process; it does not breach the statutory law of EPIC." View "In re Mardigian Estate" on Justia Law

Albert Daniels petitioned the Alabama Supreme Court for a writ of mandamus compelling the Barbour Circuit Court to vacate its order severing and staying Daniels's claims against defendants Joseph Morris, Tracy Cary, and Morris, Cary, Andrews, Talmadge & Driggers, LLC ("the Morris firm"), and also to compel the circuit court to enter a default judgment. Sherry Johnson and Daniels were the parents of Alquwon Johnson. On June 4, 2011, Alquwon committed suicide while he was an inmate in the Barbour County jail. Johnson engaged the Morris firm to pursue a wrongful-death claim related to Alquwon's death. Johnson, as the personal representative of Alquwon's estate, filed a wrongful-death action in the Barbour Circuit Court. Johnson was represented by the Morris defendants in the wrongful-death litigation. The case was removed to federal court. In 2015, the case was settled. The Morris defendants distributed the settlement funds to Johnson; none of the proceeds were paid to Daniels. Daniels telephoned the Morris firm to inquire about retaining the firm to file a wrongful-death suit related to Alquwon's death. After speaking with an employee of the firm, Daniels was told that the firm had a conflict of interest and could not represent him. He later received a letter from Cary stating that "a lawsuit brought on your behalf would not be economically feasible given the nature, facts and circumstances surrounding your case." The Morris firm did not inform Daniels about the prior lawsuit and that it had settled the case and paid the settlement proceeds to Johnson. On September 18, 2015, Daniels filed suit against Johnson alleging that, as Alquwon's father, Daniels was entitled to 50% of the net settlement proceeds but that Johnson had wrongfully retained the entire amount. He asserted against Johnson claims of breach of fiduciary duty and conversion. Two years later, Daniels added as defendants the Morris defendants and asserting two claims against them. Count three of Daniels's amended complaint asserted a claim of fraud against the Morris defendants. After review, the Alabama Supreme Court concluded the Alabama Legal Services Liability Act ("ALSLA") did not require that Daniels's claims against the Morris defendants be bifurcated and stayed pending resolution of his claims against Johnson. Accordingly, the circuit court was directed to vacate its order bifurcating and staying Daniels's claims against the Morris defendants. Daniels, however, did not establish a clear legal right to a default judgment against the Morris defendants. Thus, as to the request for a default judgment, the petition was denied. View "Ex parte Albert Daniels." on Justia Law

In 2002 a Greyhound bus struck and killed Claudia. Her daughter, Cristina, age seven, witnessed the accident. In 2016 Cristina settled claims against Greyhound and other potentially responsible persons for $5 million. Klein, Cristina’s stepfather, believes that Cristina allocated too much of the settlement to herself as damages for emotional distress and not enough to him. His suit under 42 U.S.C. 1983 alleged that Cristina conspired with state judges, law firms, Greyhound, and others, to exclude him from financial benefits. Klein sued as the purported administrator of Claudia’s estate although he had not been appointed as administrator. Klein and Cristina became co-administrators, but Klein was soon removed by a state judge. Defendants asked the federal judge to dismiss the suit as barred by the Rooker-Feldman doctrine, under which only the U.S. Supreme Court may review the civil state court judgments. The Seventh Circuit affirmed dismissal on the merits. Collateral litigation in federal court is blocked by principles of preclusion and by Rooker's holding that errors committed in state litigation cannot be treated as federal constitutional torts. The court noted that the “long and tangled history" of the case was caused by Klein’s (or his lawyer’s) "inability or unwillingness to litigate as statutes and rules require.” They had neither briefed the proper issue on appeal nor attached the judgment, as required. “They are not entitled to divert the time of federal judges” and will be penalized for any further attempts. View "Xydakis v. O'Brien" on Justia Law

Plaintiff unsuccessfully sued Bartsch’s estate, claiming to be Bartsch’s son, unintentionally omitted from his father’s will. The court of appeal upheld a finding that Bartsch was aware of plaintiff’s existence when he executed his will, having reluctantly made court-ordered child support payments to plaintiff’s mother for many years. Plaintiff separately sued the attorney who represented the executor and the executor, alleging intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment, because the defendants stated under penalty of perjury that decedent had no children when they filed the probate petition, did not serve notice of their petition on plaintiff, and “willfully failed to inform the Court [that plaintiff was Bartsch’s son], depriving plaintiff of the opportunity to assert a claim. He also alleged that the way defendants stated the petition’s allegations made him believe that decedent “was not aware that he had a son or had forgotten it,” leading him to incur significant legal fees. The court of appeal affirmed summary judgment in favor of the defendants. Plaintiff could not establish any damages because it was established that he had no interest in Bartsch’s estate. His claims are based entirely on the defendants' representations in connection with the probate proceeding and are, therefore, barred by the litigation privilege, Civil Code 47(b). View "Herterich v. Peltner" on Justia Law