[WSBAPT] Honesty with PR

Tue Mar 23 14:24:48 PDT 2021

I have been in this unfortunate situation  more than once.

An errant PR exposes you, your office and your partners to tort liability.  See Trask v Butler for a roadmap of how to get yourself sued for the acts of your errant PR-client.

To protect yourself, I suggest that you start with RPC 1.6(b)(8).as Eric points out.  I write an "Exhibit A" letter to the client directing the client to provide what you need with a 15 day limit.
On the 16th day, send a second letter with an enclosed draft Report of Counsel to the Court per RPC 1.6(b)(8). The second letter gives a second deadline and advises that you will file the report with the court is the client does not play ball.

The Report, BTW, should not include any of your inferences.  Only testimonial facts and the letters as Exhibits. The Report should not propose any action against the client such as removal, accounting, etc.  The prayer should be only "that the court should any action that the court deems appropriate." The court will likely appoint a GAL to investigate.

The Report is presented in camera or sealed.  The Report is not served upon any other parties at this time.

The reason for limited facts and no proposed action is that we do not really know what really happened.  If all is innocent, then you have smeared your client.  If you propose action by the court, then you have violated the RPC on Conflicts.

For perspective, RPC 1.6(b)(8) grew from dicta in a disciplinary case of In re Fraser. It gives the court's perspective of how the court can sua sponte protect parties when provided some info by the lawyer.

Anyway, this is what I developed and it has worked well in the past.

Good luck!

  -Bruce Moen

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Tuesday, March 23, 2021 12:59 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Honesty with PR

Thank you to all who have responded publicly and privately.

Brent Williams-Ruth (preferred pronoun: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

**EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to the following address: PO BOX 3319; Federal Way, WA 98063

Office/Scheduling Phone: (253) 285-7751

Direct: (253) 285-7453

e-mail<mailto:Brent at Williams-RuthLaw.com> / website<http://www.williams-ruthlaw.com/> / facebook<http://www.facebook.com/bwrlaw> /

On Tue, Mar 23, 2021 at 12:55 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
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>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

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 Brent Williams-Ruth
Sent: Tuesday, March 23, 2021 11:53 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: [WSBAPT] Honesty with PR

Greetings Brain Trust

I have an estate where I believe that the PR is no longer being truthful with me or the other beneficiaries regarding the assets of the Decedent.  They have refused to create any accounting with actual statements/reports from third parties and instead only is creating an excel spreadsheet that they have populated.

This is a first for me and I am not certain as to how to proceed.
Confrontation? Withdrawal? Let him sign declarations/affidavits and not worry about inconsistencies from months back?

Appreciate any thoughts and guidance.

Brent Williams-Ruth (preferred pronoun: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

**EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to the following address: PO BOX 3319; Federal Way, WA 98063

Office/Scheduling Phone: (253) 285-7751

Direct: (253) 285-7453

e-mail<mailto:Brent at Williams-RuthLaw.com> / website<http://www.williams-ruthlaw.com/> / facebook<http://www.facebook.com/bwrlaw> /
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