[WSBAPT] What is Attorney Here?

Tue Jun 9 16:14:09 PDT 2015

Yep. I agree. On a related issue, I was in on a case once where the drafting
attorney was called as a witness. Even though it is my opinion that the
confidentiality obligation can be waived by the PR, the drafting attorney
was more comfortable with our stipulating to a court order directing him to
testify. On another litigated matter, the PR chose to only partially waive
the privilege (in deposition, and the issue of whether a partial waiver
"opened the door" never came up in court). Were I called as a witness, I'd
prefer to have a court order to protect me, even if the PR did waive, unless
everyone involved agreed to the waiver. 

S  

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, June 09, 2015 3:46 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] What is Attorney Here?

Thanks to all who answered my post.  I have been advised by a litigator that
I should not represent the PR because my client's wishes under her estate
plan would be better served by using me as a witness as to her intentions
and as to the daughter's statements to me while she was trying to convince
me to advise the nominated PR to not probate her mother's Will because
"there really isn't anything there."   

As said in Harry Potter, this is "sticky wicket".

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Friday, June 5, 2015 4:39 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] What is Attorney Here?

Wow, Paul--tough one. I haven't encountered the scenario but I'd start
research with the commentary on RPC 1.14 (client with diminished capacity)
and whether it's possible to disclose information to protect the client's
estate planning interests. I would argue that a client's EP interests is a
"financial interest" coming to harm by these facts. You know what client
wanted, and daughter's actions are essentially self-serving and so she has
burden to demonstrate how/why they were actually for mom's best interests,
and not really to thwart her EP intent.

I know that many duties to our clients continue past their deaths, but not
sure about anything under RPC 1.14. Hard to argue that a deceased client
that was of diminished capacity before, is about to come to financial
harm--but then again, the client had future desires for what happens to
their financial assets after death, and the wrongful acts occurred during
the client's diminished capacity, so maybe that qualifies.

To the extent you are relieved from RPC 1.6 confidentiality by your duties
under RPC 1.14(c), I think you might be able to report financial abuse
during client's life, as a crime. I am pretty sure those cases can be
pursued even after death. Alternatively, I think you could disclose
information to the PR, as it's the PR's responsibility to pursue claims that
the deceased would have had during life.

All of that is dependent on making darn sure of your scope of discretionary
disclosure of confidential information under RPC 1.14(c).

Beware one potential trap--I assume the daughter doesn't consider you her
attorney as well. If she communicated to you something in confidence,
evaluate your potential exposure to an argument from her that she "thought
he was my attorney."

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Friday, June 05, 2015 3:11 PM
To: wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> 
Subject: [WSBAPT] What is Attorney Here?

Listmates, Happy Sunny Friday Afternoon.  I prepared a Will for a woman
several years ago.  She became mentally disabled.  Daughter was agent under
DPOA.  Assume the following is true.  Daughter knew that she was receiving
only a small portion of inheritance under Mother's Will.  Daughter either
transferred all of assets using her DPOA or had mother transfer (while
disabled) all of the accounts into "transfer upon death" accounts so that
Daughter now informs me that all funds now belong to her (including the
house where the Daughter has lived for past five years while mother was
alive but in a home, because Daughter had mother sign a quitclaim deed to
both of them with JTWRS.)  The facility where Mother was living had to
remove the telephone from the mother's room because the mother was calling
the police every night because she thought there were Indians in the
basement and trying to gain access to her room through the heating vents.
Assume no question that Mother was mentally disabled all during this period.

These actions effectively cut several non-profits and a step-sister out of
the Will.  Estate is worth over $2 mil.  The elected Personal Representative
is a distant family friend who didn't even know she was elected to be the PR
and she is not inheriting under the Will.  I have possession of the original
Will, the PR has attempted to contact me, and I know that, at least, we need
to file the original Will with court within 20 days of death. 

What are my duties here, if any?  I truly feel that Daughter has breached
her fiduciary duty under the DPOA and stealing from the estate but my client
is dead.  Am I allowed to contact the non-profits?  Am I allowed to contact
the WA Attorney General's office (I vaguely remember that the AG is supposed
to protect non-profits.)  Am I allowed to contact the step-sister?  I do not
want to represent the PR.  

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