[WSBAPT] Creditor opens probate estate

[Philip N. Jones]

Here is the link to the OSB ethics opinions.
Phil Jones

https://www.osbar.org/ethics/ethicsops.html

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Philip N. Jones
Sent: Monday, September 10, 2018 8:52 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor opens probate estate

Here are my notes on those two ethics rulings.  You should be able to find them on the OSB website.  If you can’t find them, let me know.
Phil Jones
Portland

            The fact that the trustee is also one of the beneficiaries does not require that person to retain two attorneys, one to represent the person as the trustee, and one to represent the person as a beneficiary.  That one person needs only one attorney, and the attorney will not have a conflict of interest simply because the one client has a conflict of interest, or plays two conflicting roles.  In Formal Opinion No. 2005-119, the Oregon State Bar ruled:

It follows that when Lawyer A represents Widow as an individual and Widow in her capacity as personal representative, Lawyer A has only one client.  Alternatively stated, the fact that Widow may have multiple interests as an individual and as a fiduciary does not mean that Lawyer A has more than one client, even if Widow’s personal interests may conflict with her obligations as a fiduciary.  Representing one person who acts in several different capacities is not the same as representing several different people.  Consequently, the current-client conflict rules in Oregon RPC 1.7, do not apply to Lawyer A’s situation. (Citations omitted)

            The same result is reached by Formal Opinion No. 1991-119.


From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dalynne Singleton
Sent: Saturday, September 08, 2018 3:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Creditor opens probate estate

Thank you for your post.  The Judge objected to the creditor/creditor’s attorney paying me to open the probate of the deceased defendant.  The statute clearly allows the creditor or any suitable person to open the probate and be appointed.  He told me I could “volunteer” my services but wrote into the Order appointing me that I was not to be paid by the creditor/creditor’s attorney.

Can you send me the 2 Oregon ethics opinions you mention?

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

LICENSED IN WASHINGTON AND OREGON
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Philip N. Jones
Sent: Saturday, September 8, 2018 3:05 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Creditor opens probate estate

I'm not sure exactly what the judge was objecting to, but you mention ethics, and the only ethics issue that comes to mind is the question of whether an attorney can represent a creditor and also represent the PR.  Down here in Oregon, we have two ethics rulings by the Oregon State Bar that says it is ethically permissible if they are the very same person.  Which makes perfect sense, because if you have only one person as your client, you can't have a conflict, even if that one person is wearing two different hats.  Karen Boxx and I spoke on this subject at the Seattle estate planning seminar two years ago.  The problem is that Washington has no legal authority directly on point.  The Oregon rule seems to be the best answer, but I was once warned that the Washington ethics committee might rule the other way if someone were to take the question to them.  So approaching the ethics committee might not get you the answer you want.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
Portland, OR
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371

On Sep 7, 2018, at 5:22 PM, Dalynne Singleton <dalynne at glgmail.com<mailto:dalynne at glgmail.com>> wrote:
I have done a lot of creditor opened probates in the past 15 years.  This week I had a first – a Judge in King County Superior Court chastised me in open court when I opened a probate for a deceased defendant from a tort.  Not for wanting to serve as Administrator when no one in the family stepped up, but for getting paid to do so from the creditor’s counsel.  The defendant’s family had not opened his probate and the statute of limitations on the tort was coming up.  An estate needed to be opened, an Administrator appointed and served with the tort litigation complaint.

I have done more than 50 deceased defendant probates and in many, I am appointed the Administrator.  Usually, I am hired by tort plaintiff’s counsel who do not know probate law and want me to handle the probate side of things.  I’ve never had any issues, until this week.  RCW 11.28.120(6) provides for creditors to serve and then (7) any suitable person…  Judge appointed me but said – you are not getting paid by the creditor or creditor’s counsel.

I would like to hear of your experiences in handling estates for deceased plaintiffs or defendants involved in tort litigation or wrongful death.  Have you had any issues with opening estates on behalf of creditors, appointing attorney Administrators and being paid by the creditor or creditor’s counsel?  If a tort creditor is not given an opportunity to open a deceased defendant’s estate to protect the tort litigation statute, there is no other remedy…

I have contacted the WSBA Ethics committee, feel I am justified in what I have been doing, and will be asking for a written opinion but was told it may take up to 4 months and the committee has to agree to take the ethics issues on before any opinion will be given.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

LICENSED IN WASHINGTON AND OREGON
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s).  Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message.  If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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