[WSBAPT] PR as Creditor

Wed Sep 13 13:31:06 PDT 2023

Curious on  your thoughts then, when same attorney is working with beneficiary and there is a dispute who is charged?  Estate, individual?

Diane J. Kiepe
Douglas Eden, P.S.
717 W. Sprague Ave., Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Wednesday, September 13, 2023 12:48 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR as Creditor

Down here in Oregon, we have a formal ethics opinion from the Oregon State Bar that one client who wears two different hats need not hire more than one attorney.

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.

Attorneys are not allowed to have conflicts of interest, but fiduciaries are permitted to have conflicts of interest.  For example, I can serve as PR of my mother's estate while also being beneficiary.  An attorney does not have a conflict of interest merely because the client has a conflict.
The law in Washington is less clear about representing a client who wears two hats.  In a 2001 Washington disciplinary case, a lawyer was disciplined for representing a client both as executor of an estate and in her individual capacity claiming a bank account that was the major asset of the estate.  The client claimed that she was added as owner to the bank account during her father's life, and the other beneficiaries contested her claim.  That ruling is of limited assistance because the attorney stipulated to the presence of a conflict, and thus that issue was not discussed in any detail.  https://www.mywsba.org/DisciplineNotice/DisciplineDetail.aspx?dID=436 .  As a result, I believe that there is no authority on this issue in Washington.  There should be.  (If you are aware of any authority, please speak up.)
Karen Boxx and I spoke on this issue at the 2016 Seattle estate planning seminar.  You might be able to find our materials.
Prof. Boxx and I also wrote a detailed article on this subject.  Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estate, American College of Trust and Estate Counsel Law Journal, Vol. 39, No. 3, 2019.
I do not understand why some attorneys claim that the one client needs two attorneys.  What happens if the two attorneys give conflicting advice?  Is a third attorney then hired?   The mind reels.
In my opinion, the WSBA legal ethics committee should issue a ruling along the lines of the Oregon ruling.  This issue needs to be put to rest.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

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 Shannon Jones
Sent: Wednesday, September 13, 2023 12:05 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR as Creditor

I usually advise my PR client to engage another attorney to file the required TEDRA and present at hearing because of the apparent if not actual conflict of interest in filing that for the PR as a creditor - Shannon

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 Dalynne Singleton
Sent: Wednesday, September 13, 2023 11:57 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc: Timothy Lehr <timothy at stileslaw.com<mailto:timothy at stileslaw.com>>
Subject: [WSBAPT] PR as Creditor

You have to file TEDRA pursuant to the RCW 11 statute.  I have done this before, but it has been awhile and I can search and share those pleadings with you.
PR as creditor is required to file TEDRA, you then note for hearing and serve the other heirs.  If the brother were reached and signed off in agreement, you could do a TEDRA agreement and avoid filing the TEDRA but sounds like that won't work here.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com<http://www.glglawgroup.com/>
Attorney/client meetings will be handled by teleconference or virtually whenever possible.  If you would like to set a telephone conference, zoom, or in person meeting, please call or email one my paralegals selina at glgmail.com<mailto:selina at glgmail.com> or elle at glgmail.com<mailto:elle at glgmail.com>.  My legal assistant can be reached at paige at glgmail.com<mailto:paige at glgmail.com>.  Co-counsel Anna Thompson can be reached at anna at glgmail.com<mailto:anna at glgmail.com>.

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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 michael westseattleattorney.com
Sent: Wednesday, September 13, 2023 11:47 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR as Creditor

Please post to list

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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 Timothy Lehr <timothy at stileslaw.com<mailto:timothy at stileslaw.com>>
Sent: Wednesday, September 13, 2023 11:28 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] PR as Creditor

All,

PR of an estate has filed her own creditor's claim pro se, seeking reimbursement for caregiving of the decedent for a number of years. PR is a registered nurse and was full-time caregiver for mom. Only other heir of estate is her brother who has been in and out of jail in multiple states. We're going through the due diligence process to try to find him. Estate is ready to sell the last asset (house) and close out estate.

I've never had a PR also be a creditor. There's clearly a conflict here for PR to accept the claim and I'm wondering what the best way to address the issue. My initial thought is note up a hearing, give notice to other heir (whether by publication or otherwise), submit the facts and let the court make a decision on whether to accept or reject it since the PR/creditor would obviously like to accept. The claim is in an amount that would likely take most, if not all, of the estate assets.

Any thoughts on how to proceed without any conflicts for myself or PR?

Thanks,

Timothy C. Lehr

Attorney & Partner

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p:   360.855.0131

e:   timothy at stileslaw.com<mailto:timothy at stileslaw.com>

w:  www.stileslaw.com<http://www.stileslaw.com/>

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