1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

Estate Attorney is also acting as an heir's Attorney

Discussion in 'Estate Administration & Probate Court' started by Indiana, Jan 5, 2021.

  1. Indiana

    Indiana Law Topic Starter New Member

    Messages:
    2
    Likes Received:
    0
    Trophy Points:
    1
    Jurisdiction:
    Indiana
    I know, the first response from many of you will be "get a lawyer". But, the information I'm going to present to you was just known to me tonight after close of business hours. I'm just beside myself right now and looking for guidance moving forward (YES, I will get an Attorney!)

    My mother died in early 2019, without a will. There are 3 Heirs (siblings). A family friend took on the job as Administrator, who hired an Attorney to represent the Estate. Well, I just found out that this same Attorney has on several occasions represented a brother (one of the Heirs), and has also been giving this brother legal advice concerning the Estate since 2019. Unbeknowst to the rest of the heirs, the Administrator and of course the Estate Attorney and the brother knew of this.

    There was never any disclosure of this relationship between Estate Attorney and my Brother, I found out this afternoon when my brother accidently forwarded months of emails showing damning corespondance between Administrator, Estate Attorney and himself. These emails show that the 3 have been conspiring to hide assets from the rest of the Heirs.

    Again, I know, you'll tell me to retain an Attorney, I WILL! But, to help me sleep tonight and formulate a plan, isn't this a bold and blatant Conflict of Interest that the Estate Attorney has been in the past and is currently acting //by giving advice to my brother in regards to the Estate// as my Brothers Attorney?

    Can this Estate Attorney be held accountable and be sued? Advanced thanks for reading this
     
    Last edited: Jan 5, 2021
  2. adjusterjack

    adjusterjack Super Moderator

    Messages:
    8,118
    Likes Received:
    2,211
    Trophy Points:
    113

    Sure, he can be sued. Count on spending many thousands and tying up the estate for a year or two while the lawsuit progresses.

    What you can consider doing instead of suing at this point is:

    1 - Petition the probate court to remove the lawyer and the administrator. You'll probably have to step up and seek appointment by the court as administrator.

    2 - File a complaint with the state's disciplinary commission:

    courts.in.gov: Disciplinary Commission
     
  3. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,170
    Likes Received:
    596
    Trophy Points:
    113

    It is likely a conflict of interest, but that also likely does not help you much. The conflict of interest rules are designed to do two things (1) ensure that the lawyer will be motivated to provide zealous representation to his client and (2) to ensure that the lawyer does not use confidential information he has from one current or former client against that current or former client in representing someone opposed to that current/former client.

    So, as an example of the first goal, where a lawyer has a personal financial interest in a company (e.g. owns stock in it, or whatever) the lawyer would have an apparent conflict of interest in taking on a client looking to sue that company. That's because if the lawyer succeeds in the client lawsuit that may hurt the stock price and the lawyer thus may not be as keen to put his/her full efforts into that lawsuit as a result.

    As an example of the second goal, suppose that Amy had hired Brian, who is lawyer, to represent her in a sex discrimination claim against her employer, XYZ. During the course of that representation, Brian gets confidential information about Amy. After that is concluded, XYZ later wants to hire Brian to sue Amy for breach contract. That results in a conflict of interest because now Brian might use that confidential information he has about Amy against her in that breach of contract lawsuit.

    In both instances, it is the client or former client of the attorney who is harmed by the conflict of interest and thus it is that client or former client that has the right to complain about that conflict.

    You don't ever mention being a client of this attorney yourself. The persons affected by the apparent conflict here are the estate administrator and the brother, as they are the two clients of the lawyer. Since the lawyer is not representing you and has not represented you that conflict is not resulting in you either (1) having the lawyer do less than zealous representation for you because of some conflict of the lawyer has or (2) using confidential information the lawyer got from representing you against you later on.

    If the brother and administrator are not adverse to each other the apparent conflict here likely is solved by the consent of both the administrator and the brother to it. Again, since they are the clients they are the ones that have cause to complain about the conflict. While two people using the same lawyer against you may seem unfair, that by itself is not a conflict of interest with respect to you.

    Of course, the administrator has an obligation to you to carry out his fiduciary duties and fairly administer the estate. If there is a problem with that, you need a lawyer of your own to go after the administrator for any failure of fiduciary duty.

    You may file a complaint about the potential conflict with the state attorney regulation office in the state where this is occurring. But just based on what you have said so far, I'm not seeing that you have any basis for suing the attorney for anything. Consult a probate lawyer and walk through what is going on her for advice on your options.
     
  4. zddoodah

    zddoodah Well-Known Member

    Messages:
    4,082
    Likes Received:
    1,001
    Trophy Points:
    113

    Just to be clear, the attorney hired by the administrator does not "represent the [e]state." Rather, the attorney represents the administrator.

    I'd be far more concerned about the administrator, the administrator's attorney and one of the heirs "conspiring to hide assets from the rest of the [h]eirs" than I would about any conflict of interest. Worrying about the conflict of interest is a bit like coming home to find your spouse has been murdered but being concerned that the killer trespassed.
     
  5. Indiana

    Indiana Law Topic Starter New Member

    Messages:
    2
    Likes Received:
    0
    Trophy Points:
    1
    So, if I'm reading your responses correctly, an Administrator, the Estate Attorney and one of the Heirs can all conspire to defraud the other members of the Estate? Never once did this Attorney disclose prior work and business interests with the one brother of the Estate, neither did the Administrator. This wasn't exposed until an accidental leak of emails between the three of them

    Reading your answers again, I guess there's no such thing as Conflict of Interest when an Attorney is directly invovlved. They can assist the Administrator and the one brother with looting the Estate and the other members are just SOL
     
  6. Zigner

    Zigner Well-Known Member

    Messages:
    2,594
    Likes Received:
    1,315
    Trophy Points:
    113

    When using the word "can", do you mean to say that they have the ability to? (They do.) Or, do you mean to say that they are allowed to? (The law does not allow it, but it happens.)
     
  7. army judge

    army judge Super Moderator

    Messages:
    32,506
    Likes Received:
    4,961
    Trophy Points:
    113


    Groups (large and small) continue to conspire to engage in illicit activity regularly.

    Our laws are obeyed by law abiding citizens daily.

    Our laws are broken daily by miscreants.



    Did any of the aforementioned individuals request an appointment with the attorney to discuss their concerns/grievances?

    What was allegedly "leaked" accidentally via the emails that causes you concern?

    I hope you understand that no individual responding on this website is in a position to assist you, other than SUGGESTING that all aggrieved parties should consult an attorney to assist said individuals in seeking legal redress (should ANY such redress be possible) of any purported/alleged/perceived grievances.
     
  8. zddoodah

    zddoodah Well-Known Member

    Messages:
    4,082
    Likes Received:
    1,001
    Trophy Points:
    113

    Well...they can do it, but it obviously wouldn't be legal. By way of review, I wrote:

    "I'd be far more concerned about the administrator, the administrator's attorney and one of the heirs 'conspiring to hide assets from the rest of the [h]eirs' than I would about any conflict of interest. Worrying about the conflict of interest is a bit like coming home to find your spouse has been murdered but being concerned that the killer trespassed."

    While "Tax Counsel" spent a great deal of virtual ink addressing the conflict of interest issue, he also wrote that, "[o]f course, the administrator has an obligation to you to carry out his fiduciary duties and fairly administer the estate. If there is a problem with that, you need a lawyer of your own to go after the administrator for any failure of fiduciary duty." Perhaps you did not pick up on it, but the implication here was that the alleged conspiracy to hide assets, if proven, would be a breach of the administrator's fiduciary duty.

    That's just nonsense. While I didn't read the entirety of "Tax Counsel's" discussion of the conflict of interest issue, I believe that an actionable conflict potentially does exist. The problem is that your remedy would be to petition the court to force the administrator to hire a different lawyer. That wouldn't be of much benefit to you, and that's why I made my point about the potential conflict being the least of your concerns. If you have evidence that the administrator, the administrator's attorney and another heir are conspiring to hide estate assets, then you need to hire an attorney ASAP and make an appropriate motion to the court and present your evidence so that the administrator can be removed and surcharged (if appropriate) and the lawyer appropriately sanctioned).
     
  9. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,170
    Likes Received:
    596
    Trophy Points:
    113

    No, that is not what anyone said. What was said is that there is no attorney conflict of interest with respect to YOU. The attorney is not representing you and apparently never represented you so you have no concerns here that an attorney you hired will either be less motivated to do a good job for you or will use confidential information he has about you against you.

    But as I stated before, the administrator has a fiduciary duty to all the estate beneficiaries to administer the estate properly and follow the will/intestate succession rules in distributing the estate. If the administrator fails in those duties you'd have a claim to bring against the administrator for failing in those duties and/or an action against the estate to compel distribution of what you are to receive. However, what I don't see here is any legal claim you have against this attorney.


    That's not correct. What you should be taking away from the comments is that the conflicts of interest rules for attorneys are designed to protect clients and former clients of the attorney. There is no conflict of interest with regard to you because you've never been a client of that attorney.

    That doesn't mean that there are not other problems with what the administrator is doing that you may need to bring to the court's attention. It's what the administrator does with the estate that ought to be your focus, though, rather than the possible conflict the attorney may have in representing his clients. That's an issue for his clients to work out.
     
  10. flyingron

    flyingron Well-Known Member

    Messages:
    704
    Likes Received:
    306
    Trophy Points:
    63

    "Represented in the past" doesn't mean that representation constitutes a current conflict of interest.
     
  11. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,170
    Likes Received:
    596
    Trophy Points:
    113

    Not every representation of a current client against a former client results in a conflict of interest, but it often can present that problem which is why lawyers need to have a good process for checking for potential conflicts when taking on new clients.

    The ABA Model Rules of Professional Responsibility, which many states (including Indiana) use as the basis for the their rules that govern lawyer conduct, directly address a lawyer's duties to former clients in Rule 1.9:

    (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

    (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

    (1) whose interests are materially adverse to that person; and

    (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
    (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

    (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

    (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
     
  12. Zigner

    Zigner Well-Known Member

    Messages:
    2,594
    Likes Received:
    1,315
    Trophy Points:
    113

    Oh yay! A "really attorney" is here to play.
     
  13. zddoodah

    zddoodah Well-Known Member

    Messages:
    4,082
    Likes Received:
    1,001
    Trophy Points:
    113

    Ummm...no. The OP got three helpful, well-thought out responses. The OP then responded by misconstruing the responses and received further helpful responses. You're obviously just here to troll, however. Maybe you're the same person as "Harold99" on ExpertLaw.
     
  14. army judge

    army judge Super Moderator

    Messages:
    32,506
    Likes Received:
    4,961
    Trophy Points:
    113

Share This Page