[WSBAPT] PR Not Following Advice

[Roger Hawkes]

Good idea.  😊

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Bruce Moen
Sent: Monday, July 17, 2023 1:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR Not Following Advice

Hi Roger,

I said “a couple,” but have had several over the years.  That is, several where the client ignored me and I filed the Petition.

I don’t recall if anyone objected in these occasions.  Maybe once, maybe on another matter.

When I got the objection, I called opposing counsel and said “Oh, c’mon.” They replied “No dice.” That same day, I obtained my client’s signature on a very short one page pleading entitled “Discharge of Counsel” and filed and served it.

I got a call 30 minutes later from opposing counsel laughing and said good naturedly “Well, that works!”

Thus ending the dispute over whether I could bail out at that point. 😉

  Bruce

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 Roger Hawkes
Sent: Monday, July 17, 2023 1:20 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR Not Following Advice

Bruce: did anyone object to your withdrawal?

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 Bruce Moen
Sent: Thursday, July 13, 2023 4:35 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR Not Following Advice

I’ve had a couple of clients with malfeasance as PR.

I was guided by  the dicta in In re Fraser, 83 Wn.2d  884, 523 P.2d 921 (1974).
I think that Fraser was the warm up to  RPC 1.6(b)(8)

I sent a cautionary letter with a proposed Report to Advise Court.

I later filed the Report under seal and did not serve any other parties.  The Report did not propose any specific relief (because of duty of loyalty to the client), but invited the court to take any action that the court deemed appropriate.  In each case, the court appointed a GAL to investigate.  I withdrew upon the appointment of the GAL.

  Bruce Moen

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 Eric Nelsen
Sent: Thursday, July 13, 2023 3:17 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR Not Following Advice

There may be an ethical requirement to report PR misconduct to the court. From an earlier post of mine last October:

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>

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 Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>
Sent: Thursday, July 13, 2023 2:57 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] PR Not Following Advice

Listmates:

PR not following their attorney’s advice.  Seems PR has run the estate for their benefit.  My advice for the attorney is to withdraw.  Isn’t there a concern for the attorney that although the Trask case finds the attorney for the estate represents the PR, if the PR is not doing their job and damages the heirs, that the attorney for the PR could be liable to the heirs?

Jeff Davis

W. Jeff Davis
BELL & DAVIS PLLC
Attorneys at Law
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

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