Justia Legal Ethics Opinion Summaries

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

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

This civil action arose out of the alleged mishandling of the Conservatorship of Victoria Newsome. Victoria Newsome’s mother and conservator, Marilyn Newsome, filed suit against former chancellor Joe Dale Walker, Chancellor David Shoemake, and other parties. Victoria’s severely infirm condition was the result of medical malpractice. A trust was established out of the proceeds from settlement of the malpractice case. Newsome raised numerous claims seeking redress, and a full accounting of the conservatorship, when the two chancellors were sanctioned by the Mississippi Commission on Judicial Performance. The Mississippi Supreme Court determined the doctrine of judicial immunity applied to bar Newsome’s claims, made on behalf of the Victoria Newsome Conservatorship, against former chancellor Joe Dale Walker and Chancellor David Shoemake. The Court therefore affirmed the judgment of the Chancery Court of Simpson County granting a Rule 54(b) dismissal. In addition, the Court granted Keely McNulty’s Motion to Strike Allegation and others involved in the administration of the conservatorship. View "Newsome v. Shoemake" on Justia Law

Plaintiff, conservator and guardian for his son Vincent Jones, and Plaintiff’s counsel (Attorney) appealed from two orders issued by the probate court that (1) dissolved and replaced a supplemental needs trust that had been created for Vincent’s estate, and (2) directed the Attorney, who created the original trust, to disgorge legal fees paid to her by Vincent and conditionally to pay additional amounts. The Supreme Judicial Court affirmed in part and vacated in part, holding (1) the probate court’s order creating a new supplemental needs trust for Vincent was not void for lack of statutory authority; and (2) the payment order against the Attorney deprived the Attorney of due process. View "In re Guardianship & Conservatorship of Jones" on Justia Law

The Vermont Supreme Court rejected plaintiff’s request to extend an exception to the general rule to the circumstances of this case, which wanted to impose on attorneys a duty to prospective beneficiaries of undrafted, unexecuted wills. Doing so, in the Court’s view, would undermine the duty of loyalty that an attorney owes to his or her client and invite claims premised on speculation regarding the testator’s intent. Plaintiff filed a complaint against both defendant and his law firm alleging that defendant committed legal malpractice and consumer fraud, specifically alleging defendant breached a duty of care by failing to advise mother on matters of her estate and failing to draft a codicil reflecting her intent. The court granted defendants a partial motion to dismiss on the consumer fraud allegation. Plaintiff filed an amended complaint, adding another count of legal malpractice. This amended complaint alleged that defendant breached a duty owed to plaintiff to the extent that he could have successfully challenged mother’s will. According to plaintiff, he filed six affidavits from mother’s relatives, friends, and neighbors indicating that mother was committed to leaving a House she owned to plaintiff. Defendants again moved for summary judgment in which they argued that an attorney did not owe “a duty to a non-client prospective beneficiary of a nonexistent will or other estate planning document.” The trial court ruled there was no duty to beneficiaries of a client’s estate under Vermont law. The Supreme Court agreed. View "Strong v. Fitzpatrick" on Justia Law

In 2015, the court of appeal upheld the probate court’s decision to grant the petition of Alexander Hughes, the sole noncontingent trust beneficiary (and trustor Mark Hughes’ only child), to suspend and remove trustees due to their breach of trust in failing to exercise reasonable prudence in connection with the trust’s sale of Tower Grove, a 157-acre parcel of previously undeveloped Beverly Hills real property. A subsequent order allowed the former trustees to withhold from the successor trustee and Alexander Hughes, some, but not all, of a collection of documents identified on a supplemental privilege log submitted by the former trustees under court order. The documents, which are from the trust’s legal files and relate to two trust accountings submitted by the former trustees prior to their removal, were withheld on the basis of attorney-client privilege. The court of appeal reversed in part, finding that the probate court failed to consistently and appropriately apply the legal standards prescribed by the California Supreme Court. View "Fiduciary Trust International of California v. Klein" on Justia Law