[WSBAPT] What is Attorney Here?

[Bryce Dille]

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From: Sam Furgason
Sent: Tuesday, June 9, 2015 4:17 PM
To: 'WSBA Probate & Trust Listserv'
Reply To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] What is Attorney Here?


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”.

[cid:image001.jpg at 01D0A2CF.4E5E3070]

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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