[WSBAPT] Noisy Withdrawal in Guardianship.

[Eric Nelsen]

I posted this in a similar situation back in March, which I'm not re-editing so it tells you some stuff you obviously already know. But, for what it's worth:

Start with RPC 3.3<https://www.courts.wa.gov/court_rules/pdf/RPC/GA_RPC_03_03_00.pdf>, especially sections (c) and (f) and comment 14; coupled with RPC 1.6(b)(8)<https://www.courts.wa.gov/court_rules/pdf/RPC/GA_RPC_01_06_00.pdf>. The "shall" in RPC 3.3 coupled with the "may" in RPC 1.6 have been interpreted to mean that we are required to disclose known malfeasance to the court.

That said-we still have confidentiality and loyalty requirements to the client, so I bend over backwards to give the client every chance to give me what I need to protect them. I have been in this situation before, and have explained to the client (without being accusatory) that I need backup documentation for my records because I can't prepare submissions to the court without having verified information. On one occasion I made clear to the client that I am required to report to the court any breach of fiduciary duty and strongly urged them to pay some money back to the estate, which repairs the breach and removes the duty to disclose. That convinced them to return the funds.

On another occasion I was forced to withdraw because the client refused to provide documentation to me. It wasn't a case where I had an actual indication of malfeasance; just an uneasiness about the scarcity of statements coupled with the client's resistance to providing anything to me. Per RPC 3.3, comment 8, my suspicions did not rise to the level of "known falsity" that had to be disclosed. But I wanted nothing further to do with that client.

I have yet to be thrust into a situation where I had documented evidence of malfeasance and the client refused to remedy the breach, such that I would be required to disclose. Knock wood...

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Christopher Neil
Sent: Tuesday, June 1, 2021 2:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Noisy Withdrawal in Guardianship.


Anyone file a noisy withdrawal in a guardianship lately?

My client is getting very sloppy with blocking bank accounts in the range of $30k.  (see Karan, Treadwell<https://caselaw.findlaw.com/wa-court-of-appeals/1320960.html>)  And, rather then get them blocked the client wants to argue.

RPC 1.6(8)<https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&ruleid=garpc1.06&set=rpc>  allows (but does not mandate) disclosure of information of "breach of fiduciary responsibility", to the tribunal.

Thoughts?



Chris Neil | Attorney | Neil & Neil, P.S.
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