[WSBAPT] breach of duty

[Eric Nelsen]

Copying from a post I made a while back on this issue:

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 Shannon Jones
Sent: Wednesday, October 26, 2022 8:29 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] breach of duty

Listmates, If a non-intervention PR has breached fiduciary duty (like estate money is missing), is their attorney required to notify the probate court prior to withdrawal, notify other heirs, both? If the answer is yes, how is this done w/o revealing attorney client privileged communications - Shannon

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Shannon R. Jones | Attorney
Campbell Barnett PLLC
Direct:  253.848.3515
Office: 253.848.3513| Fax: 253.845.4941
317 South Meridian
Puyallup, WA 98371
shannonj at campbellbarnettlaw.com<mailto:shannonj at campbellbarnettlaw.com>
campbellbarnettlaw.com<https://campbellbarnettlaw.com/>

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