Replacing the Estate's Attorney
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Is the attorney the executor and why would you claim that the attorney is incompetent?
I'm sorry it took me so long to get back. I don't believe I got notification that I had a reply.
Anyway, to explain the situation, my father was having health and financial problems (his broker was stealing from him). I retained an Attorney for him in April, to deal with both issues. Upon my father's death in June the same attorney started handling the Estate. There is now an Executor at a local bank and the attorney.
There is a significant amount of "missing money" and one or more of the heirs has reservations about this attorney's ability to properly handle the process of getting that money back, including possible SEC litigation. Some money has been lost through "outright theft" (the broker took it and put it in his personal checking account), and some money has been lost because no one was properly managing the Investment and IRA accounts.
Thus my question.
Also, should the heirs also be represented by their own attorney(s)? What control is there on the Attorney for the Estate, to prevent him from such things as spending money to pursue recovering the "missing money" in a manner the heirs disagree with?
Finally, is it possible to recover only a portion of the missing money, say just the outright theft, for the purpose of moving ahead to get the Estate closed, and then have the heirs pursue the amount in dispute from mismanagement in another civil suit? There is a chance the brokerage firm would settle on the outright theft fairly quickly.
By the way, the broker lost his NASD registration and his manager was also charged with mismangement of another client's account at the same time. The broker had been under suspicion by his managers for more than a year and Dad was never warned.
Sorry this is so long, but we need to do something soon and have a lot of questions.
Was this ever reported to the district attorney's office? This might be a case of grand larceny. I don't know if the attorney was negligent -- if he knew about this I'm sure he has done something. Has he/she? What was his/her response to you regarding your dissatisfaction?
Wow, I just now got notified that I had a reply!
Anyway, I see I have failed to explain things clearly again.
The attorney has not stolen any money! The "missing money" referred to is the money the broker stole, plus additional loss in my Dad's brokerage accounts. The heirs dis-satisfaction with the attorney is that they do not feel he has the "clout" to get it back.
Since posting I have learned more about the process of replacing an attorney, or, perhaps, appointing a "Special Litigation Counsel" to assist him, so my prior inquiry is not as urgent as in was a month ago.
I understood that the attorney did not take the money. I was talking about the responsibilities a fiduciary has with the Estate. Regarding the "clout" issue, I'm not sure that this will get the money back. If it has been stolen then the best course of action, IMHO, would likely be having the district attorney investigating the matter.
Two police departments, the FBI and the County Attorney have been involved with this from the beginning. The criminal process is one side of the question over which I (we) can make no decisions.
Our concern is the best procedure return the stolen funds to the Estate. The lack of clout concern is whether the bank, securities firm and broker involved will respond to the present attorney.
The Special Litigation Counsel mentioned in my last post refers to the fact that I have found another law firm, the largest in the city, who have had case against boht the broker who stole the money and his manager at the brokerage firm. They seem to be a logical firm to be handling this, perhaps by assisting the present attorney.
Yes, the present attorney has been doing something. He met with the bank the broker forged checks on on they said they won't pay because they now claim Dad "gave" the money to his broker. The bank is the one that contacted the authorities and started the prosecuted of the broker!
The attorney is also in contact with the broker's attorney, the broker's ex-wife's attorney and the attorney for the brokerage firm, which thus far has offered to settle for about 1/6 of the loss,
Our concern is the best procedure return the stolen funds to the Estate. The lack of clout concern is whether the bank, securities firm and broker involved will respond to the present attorney.
The Special Litigation Counsel mentioned in my last post refers to the fact that I have found another law firm, the largest in the city, who have had case against boht the broker who stole the money and his manager at the brokerage firm. They seem to be a logical firm to be handling this, perhaps by assisting the present attorney.
Yes, the present attorney has been doing something. He met with the bank the broker forged checks on on they said they won't pay because they now claim Dad "gave" the money to his broker. The bank is the one that contacted the authorities and started the prosecuted of the broker!
The attorney is also in contact with the broker's attorney, the broker's ex-wife's attorney and the attorney for the brokerage firm, which thus far has offered to settle for about 1/6 of the loss,
You can consider suing the bank who can deal with all the negative publicity. However, most of the hoopla should be to push towards settlement. Return of the money might not be imminent but letting the DA handle the matter allows you to see results without expending your own funds, albeit that it could occur more slowly.
I assume you also mean to sue the Brokerage firm and the broker who stole the money. All the bank did wrong is not repay the checks that were forged on their account and deposited into the broker's personal account at another bank.
The County Attorney is notorious for not prosecuting white-collar crime, so we have a road-block whichever way we turn.
The County Attorney is notorious for not prosecuting white-collar crime, so we have a road-block whichever way we turn.
If the DA doesn't prosecute white collar crime, there is a good way to deal with him.... the power of the press. Don't use it unless you are truly thwarted. Sometimes there are reasons why cases are not pursued and sometimes for all the wrong reasons. Expend efforts to avoid nudging and placing them on the hot seat. 
Originally posted by thelawprofessor:
If the DA doesn't prosecute white collar crime, there is a good way to deal with him.... the power of the press. Don't use it unless you are truly thwarted. Sometimes there are reasons why cases are not pursued and sometimes for all the wrong reasons. Expend efforts to avoid nudging and placing them on the hot seat.
We seem to think alike.
I am planning on letting things take their course for awhile, letting the attorney send all his demand letters and let the broker, the brokerage and the bank take the ridiculous position that my father authorized his broker to write himself checks, have IRA distributions deposited directly into the broker's personal bank account and that he authorized the broker to take his social security, VA disability and civil service pension checks each month and put those into his (the broker's) personal bank account also.
At that point I think it will be a much more interesting story for the media.
In regards to the attorney for the Estate, I am also sending a copy of all of my requests of him to the Executrix, whom I have informed about the heirs concerns. So, she will know that he is not responding to our requests.
I have also found another law firm (the largest one) in the same city that just happens to have had "run-ins" with the broker and his manager before. When the time comes for litigation I am going to push for them being appointed as Special Litigation Counsel.
By the way, I'm like one of those scruffy little dogs that gets ahold of your pants leg around the ankle and regardless of how hard you shake you can't get him off!
If anyone cares--which it appears is unlikely--to update this, as soon as I made a move to express my siblings' dislike of the Attorney for the Estate by contacting the Executrix, the Probate Judge, and another law firm, my siblings disappeared back into the woodwork!!!!! At least I have sorted out the whiners and spineless ones from those who are attempting to help!
Of course, at this point I am not only the lightning rod for discontent from family members, but I am now considered one of the discontented myself and a distraction to the Attorney. The Attorney has assigned a person in his firm to deal with me, so at least someone is responding to my inquiries (and he doesn't have to).
I will have to say that the Attorney has taken the information I found and found even more. The major portion of the demand letters to the broker and the brokerage are a verbatim reproduction of the report I gave the estate in August, so I have no complaints.
The broker who did the stealing has made arrangements with the County Prosecutor to plead guilty to first degree theft. That removes the brokerage and banks' only defense--that Dad "gave" the funds to him. That upped the ante' from the brokerage and the Attorney's assistant now tells me it is just a matter of agreeing on a figure.
Time will tell.
Of course, at this point I am not only the lightning rod for discontent from family members, but I am now considered one of the discontented myself and a distraction to the Attorney. The Attorney has assigned a person in his firm to deal with me, so at least someone is responding to my inquiries (and he doesn't have to).
I will have to say that the Attorney has taken the information I found and found even more. The major portion of the demand letters to the broker and the brokerage are a verbatim reproduction of the report I gave the estate in August, so I have no complaints.
The broker who did the stealing has made arrangements with the County Prosecutor to plead guilty to first degree theft. That removes the brokerage and banks' only defense--that Dad "gave" the funds to him. That upped the ante' from the brokerage and the Attorney's assistant now tells me it is just a matter of agreeing on a figure.
Time will tell.
Great work and I'm glad that you provided us with an update. I think most readers really enjoy seeing how things turn out. In your instance it's probably the best result you could hope for in the short run. Now we'll see whether it was just hot air -- not so likely if they took you this seriously. Best of luck and give us further updates as to whether the offer comes in!
The bad guy still has not pleaded guilty yet and the brokerage firm still has not gotten back on the demand letter to them. It's only been two weeks since it was sent and I'm sure they have to check on a few things because it was fairly involved.
I went and contacted (anonymously) the news editor at the newspaper, explaining that I wasn't in a position to provide any information yet, but asking if they were interested. They are, when I'm ready. I asked the attorney how much we can say to the media and he sent his answer in a letter to all of the heirs--nothing.
I went and contacted (anonymously) the news editor at the newspaper, explaining that I wasn't in a position to provide any information yet, but asking if they were interested. They are, when I'm ready. I asked the attorney how much we can say to the media and he sent his answer in a letter to all of the heirs--nothing.
The attorney's advice seems good. You likely won't get a settlement if you send the news out to the public. If you do, you will probably get something extra for keeping the news quiet so as not to embarass the company for the acts of an unscrupulous employee.
The brokerage has just ignored the demand letter.
The attorney for the estate is meeting tomorrow with the broker who did the fraud and his attorney, for the purpose of negotiating and settlement. The attorney for the estate has reported to me that the bad guy is trying to stay out of jail.
Figures the brokerage would ignore the letter. Don't worry. I think they are probably determining what kind of liability they may have with regard to this broker. Do not be discouraged! Keep us updated.
OK. I will.
The results of the meeting with the broker who stole the money is that he admits doing so. He admits to a significant amount, but substantailly short of the amount the police and bank show. He agrees to cooperate against his former brokerage in pursuing our claims of inappropriate investments and investment loss.
The brokerage has responded and upped their offer slightly.
We're about 40% of where we need to be without litigation.
The attorney for the Estate is ready to ask the court for the right to file suit against the broker and the brokerage and to hire Special Litigation Counsel. If it actually goes to litigation he will be asking for a substantially larger amount.
The wheels of justice need lubrication but are turning.
The attorney for the Estate is going back to court to ask for permission to file suit against the broker and his brokerage. He is also asking permission to have Special Litigation Counsel appointed.
It appears the brokerage has paid the Estate a really small amount, saying that was the amount their broker stole. The attorney for the Estate is asking the court for permission to accept that without precluding the Estate's right to ask for more.
My letter to the County Attorney, asking several questions and, perhaps, revealing stuff they don't know about, is going out in today's mail.
It appears the brokerage has paid the Estate a really small amount, saying that was the amount their broker stole. The attorney for the Estate is asking the court for permission to accept that without precluding the Estate's right to ask for more.
My letter to the County Attorney, asking several questions and, perhaps, revealing stuff they don't know about, is going out in today's mail.
Update.
A disturbing letter arrived from the attorney for the Estate. Without mentioning the result of the Hearing scheduled for yesterday (since the letter was written and mailed three days ago), the attorney discussed moving the case into the litigation phase (as if it were a done deal).
The most disturbing part was his discussion of the fee arrangements. He said he would be billing the Estate for the hours he has put in thus far (rather than the state-mandated percentage) despite the fact that he has been unable to reach a settlement with either the broker or the brokerage.
Additionally, he states that the attorney being brought on board to handle the litigation will be paid 1/3 of the funds recovered (up from the 25% previously mentioned), plus expenses (not previously mentioned at all).
It appears that the attorney for the Estate also plans on continuing to bill the Estate for his services, on top of the contingency and expenses going to the litigation attorney.
In response to my inquiry as to what is presently on the table from the broker and brokerage (to settle with the Estate) his response was that he didn't think there was any offer on the table. That would mean that despite the fact that the broker is under orders to co-operate with the Estate as part of his plea agreement, which would include some sort of restitution, the attorney for the Estate is saying there is no offer, so anything agreed to once the litgation phase starts would be subject to the 1/3 contingency.
So, the essence of the fee situation is that the attorneys could, infact, significantly deplete funds from the Estate without recovering anything. This was never mentioned as a possibility before.
It is clear that the attorney for the Estate does not wish to take other available actions which may force the issue with the broker or the brokerage such as pushing the County Attorney for additional criminal charges against the broker and his supervisors at the brokerage or filing a claim with the brokerage's insurance company for the losses incurred.
Additionally, he refuses to pursue a claim against my father's bank, despite the fact that they admit the broker forged approximately $50,000 in checks on my father's account. The broker admits doing this but the bank's position is that they could not have had any knowledge that those checks were forgeries when they were presented. All were presented prior to people at the brokerage notifying the bank of suspicious activity.
Not a happy day.
A disturbing letter arrived from the attorney for the Estate. Without mentioning the result of the Hearing scheduled for yesterday (since the letter was written and mailed three days ago), the attorney discussed moving the case into the litigation phase (as if it were a done deal).
The most disturbing part was his discussion of the fee arrangements. He said he would be billing the Estate for the hours he has put in thus far (rather than the state-mandated percentage) despite the fact that he has been unable to reach a settlement with either the broker or the brokerage.
Additionally, he states that the attorney being brought on board to handle the litigation will be paid 1/3 of the funds recovered (up from the 25% previously mentioned), plus expenses (not previously mentioned at all).
It appears that the attorney for the Estate also plans on continuing to bill the Estate for his services, on top of the contingency and expenses going to the litigation attorney.
In response to my inquiry as to what is presently on the table from the broker and brokerage (to settle with the Estate) his response was that he didn't think there was any offer on the table. That would mean that despite the fact that the broker is under orders to co-operate with the Estate as part of his plea agreement, which would include some sort of restitution, the attorney for the Estate is saying there is no offer, so anything agreed to once the litgation phase starts would be subject to the 1/3 contingency.
So, the essence of the fee situation is that the attorneys could, infact, significantly deplete funds from the Estate without recovering anything. This was never mentioned as a possibility before.
It is clear that the attorney for the Estate does not wish to take other available actions which may force the issue with the broker or the brokerage such as pushing the County Attorney for additional criminal charges against the broker and his supervisors at the brokerage or filing a claim with the brokerage's insurance company for the losses incurred.
Additionally, he refuses to pursue a claim against my father's bank, despite the fact that they admit the broker forged approximately $50,000 in checks on my father's account. The broker admits doing this but the bank's position is that they could not have had any knowledge that those checks were forgeries when they were presented. All were presented prior to people at the brokerage notifying the bank of suspicious activity.
Not a happy day.
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