Attorney Misconduct (Conflict of Interest)

[Tax Counsel]

In this situation the attorney is serving 3 masters, the estate, the executor, and the brother all with different interests in the outcome of probate.

Not three masters. Two. The attorney represents (1) the executor on behalf of the estate and (2) the attorney represents the brother. The problem is that under the facts we have so far we do not know on what matter(s) the attorney represents the brother. If the attorney is representing the brother with respect to his interests in the estate while also representing the executor (estate) then there is a conflict of interest problem that cannot be waived by consent. But if the attorney is representing the brother on some matter other than having to do with the estate, that is something that generally could be fixed by getting the consent of the clients.

In any event, the other heirs are not clients of the attorney and thus generally would have no standing to complain about any alleged conflict of interest. Again, it is important to remember that the conflict of interest rule protects clients (and former clients) of the attorney, not others that were never clients of the attorney.

 

[welkin]

That doesn't necessarily mean that it's a conflict of interest - read above.

In my book it does. According to the Iowa RPC it does.

And if you are referring to TC's posts, they are mostly hypothetical and don't take into account what the OP posted. Nor does he know the issues between the parties and the estate.

Let's suppose that when the brother was the executor he mishandled estate assets. Now the brother is represented by the same attorney that represents the estate. Will the attorney for the estate go after the former executor when he is also his client? Who's interest will he pursue? Will he protect the estate or the former executor?

 

[welkin]

If the attorney is representing the brother with respect to his interests in the estate while also representing the executor (estate) then there is a conflict of interest problem that cannot be waived by consent

I agree and have no argument about that.

But what are the chances of that being the case? Is it possible that the attorney represents the brother in a divorce or a contract dispute or whatever sure.

 

[Zigner]

Is it possible that the attorney represents the brother in a divorce or a contract dispute or whatever sure.

In other words, it's not necessarily a conflict of interest.

 

[zddoodah]

But what are the chances of that being the case? Is it possible that the attorney represents the brother in a divorce or a contract dispute or whatever sure.

Exactly. It's possible. The chances are either 100% or 0%, and we don't know which it is.

MORE IMPORTANTLY, the OP is not one of the "masters" whom the attorney serves, so the OP has no standing to do anything about any conflict that might exist.

 

[Tax Counsel]

According to the Iowa RPC it does.

Not exactly. The Iowa RPC says what I said earlier: if the attorney is representing both opposing parties in a matter that is a conflict of interest that cannot be waived by the clients. Otherwise, the representation of two current clients whose interests may be opposed but only one of those clients is represented in that matter is a potential conflict that can be waived by the clients involved. So as I said earlier, it matters very much what work the lawyer is doing for the brother. We don't have that information, nor do we know if the attorney sought and obtained any necessary waivers. So all that can be said at this point is that there may be a conflict of interest problem for the lawyer. We'd need more facts to know that for sure. I realize you don't seem to like answers that more information is needed, but a lot of times that's the only answer that can be provided because WE DON'T HAVE ALL THE NEEDED INFORMATION.

Nor does he know the issues between the parties and the estate.

And neither do you. That's the point.

Let's suppose that when the brother was the executor he mishandled estate assets. Now the brother is represented by the same attorney that represents the estate. Will the attorney for the estate go after the former executor when he is also his client? Who's interest will he pursue? Will he protect the estate or the former executor?

All of which are significant issues, certainly, which is why I said at the outset that even if the attorney could represent them both without a conflict of interest under the rules I would still advise the lawyer not do it. I certainly wouldn't do it in the same circumstance.

 

[welkin]

Not three masters. Two. The attorney represents (1) the executor on behalf of the estate and (2) the attorney represents the brother

I disagree with this. The executor and the estate are not the same entity. The estate exists with or without the executor. Who would the attorney be advocating for? The executor or the estate where the heirs have a vested interest?

 

[Zigner]

I disagree with this. The executor and the estate are not the same entity. The estate exists with or without the executor. Who would the attorney be advocating for? The executor or the estate where the heirs have a vested interest?

The only entity who has the authority to hire an attorney to represent the estate is the administrator. As such, the attorney represents the estate on behalf of the administrator. The estate, as an entity, cannot hire an attorney because, ya know, it's not alive.

 

[zddoodah]

Not three masters. Two. The attorney represents (1) the executor on behalf of the estate

I disagree with this. The executor and the estate are not the same entity. The estate exists with or without the executor. Who would the attorney be advocating for? The executor or the estate where the heirs have a vested interest?

The highlighted is correct, but so what? The attorney represents the executor. The executor is the "representative of the estate," but the attorney does not represent the estate.

But again, the ultimate points are that (1) any potential conflict exists between the executor and the OP's brother; and (2) the OP has no standing to object to any potential (or even actual) conflict.

Since the OP has not returned to the thread, I no longer see any point in participating in this debate.

 

[Silvi 2]

Folks, I'm back (original OP). I forgot what password I used, so simplest method was to create new account. Let me give you a bit more info:

The now disclosed emails floating around show this attorney, who's double dipping as both the current Executives attorney and also for the past Exec (brother who's also an heir).

These emails show that this attorney is advising his clients, the Exec and brother to basically screw the other heirs, by having them do things and sign Doc's that harm the rest of us..One example is that the brother wants the estate assets burned up in legal fees (mention of high extraordinary feed) and high compensation for the Exec. I think a personal gain for this brother is to make sure the rest of the heirs end up with little or nothing because of this backroom dealing going on

I can give you other examples but, in a nutshell, the 3 are working in unison to gain personally and at same time harm the rest of the heirs. "Conspiracy" is a big word to throw around but the facts show, the Exec/Attny/Brother (heir) are working together for their own gains.

Welkin, I've had others agree with you, especially the part where a judiciary is abusing their position and not treating the entire Estate with honesty, unbias and equal treatment

 

[Zigner]

... my personal attorney who's representing me ...

I can't believe that we ALL missed this. You are represented. You need to speak to your attorney about this matter. Your attorney will have all of the facts of the matter and can give you actual advice. Be patient - he'll be back in a couple of days.

Good luck to you.

 

[Zigner]

Welkin, I've had others agree with you, especially the part where a judiciary is abusing their position and not treating the entire Estate with honesty, unbias and equal treatment

"judiciary"? Do you mean the attorney for the administrator of the estate?

Do you understand that the duty of the administrator's attorney is to the administrator?

 

[Silvi 2]

"judiciary"? Do you mean the attorney for the administrator of the estate?

Do you understand that the duty of the administrator's attorney is to the administrator?

Judiciary = EXEC
Do I need to repeat this?
Anyway, here is another little behind the scenes shenanigans that was exposed in the emails.

The Current Exec did not take control over all of the assets and statements. For over a year now, the brother (Ex Exec) was still named as the addressee on an investment owned by the deceased.. Quarterly dividend checks have been sent to this brother for the past year.He didn't cash them in but, according to the emails, he, with advice of his attorney (who is also the current Exec attorney) was requested to not transfer this account to the current Exec and to just "hold on to the checks" and not let the other heirs know about the existence of this account

Still no Conflict of Interest, Zigner? From what you and the Zoodah character are preaching, it's more than OK that a current estate exec, the former estate exec and the attorney for BOTH of them get to run roughshod over the rest of the heirs!? Nothing wrong with that picture, no?

 

[zddoodah]

I can't believe that we ALL missed this.

"We ALL" did not miss it.

Meet with your attorney when your attorney is available.

Certainly discuss this with your attorney when he returns. . . .

 

[Tax Counsel]

I disagree with this. The executor and the estate are not the same entity. The estate exists with or without the executor. Who would the attorney be advocating for? The executor or the estate where the heirs have a vested interest?

The executor is the person who represents the estate. The executor hires the attorney and other professionals, considers the advice they give the executor, and then acts from there. The estate itself cannot hire anyone nor make any decisions, that's what the executor is for. The attorney acts at the instructions of the executor. It's not like the attorney acts for the estate independently of the executor. That's not how it works. So there are, as I said before, just two clients — the executor and the brother.

 

[Tax Counsel]

Still no Conflict of Interest, Zigner? From what you and the Zoodah character are preaching, it's more than OK that a current estate exec, the former estate exec and the attorney for BOTH of them get to run roughshod over the rest of the heirs!? Nothing wrong with that picture, no?

You need to understand something here. All the attorney does for the estate is provide advice to the executor and, if needed, represent the estate in litigation. The decisions about what to do with the estate were made by the executor and it is the executor who acts for the estate. So to the extent you don't like what is going on in the estate, that ire is properly directed to the executor, not the attorney. The attorney isn't making the decisions here. The attorney just provides advice, and who knows if the executor is even following the advice he or she gets. What matters to you is what the executor does.

As for a conflict of interest, that has already been explained. The conflict of interest rules are set up to protect the CLIENTS of the attorney. The idea is to keep the attorney from the problems that result when representing two (or more) CLIENTS with competing interests. Here, the clients are the executor and the brother. To the extent there is a conflict of interest (and there may be — there just isn't enough information here to know that for sure) it is the executor and the brother that would have cause to complain about it and do something about it.

You are not the client of the attorney. So there is no conflict of interest here with regard to YOU. Your lawyer presumably doesn't have a competing interest here that might cause him/her to do less than his/her best job for you. So you aren't the one being harmed by any conflict here.

That's not to say that there are no issues here for you. But the problems you have would be addressed to the executor. It is the executor here that has a fiduciary duty to the beneficiaries of the estate. Presumably that is part of what you hired your lawyer to do — to ensure the executor does the job properly. And in the end, that's what really matters, right? You want the executor to do the job right.

 

[Zigner]

Judiciary = EXEC
Do I need to repeat this?

Judiciary = COURT. EXEC = ? I'm assuming that, to you, "EXEC" = "Executor", which is fine, as long as you understand that "Executor" really means "Administrator".
Do I need to repeat this to you?

 

[Silvi 2]

Judiciary = COURT. EXEC = ? I'm assuming that, to you, "EXEC" = "Executor", which is fine, as long as you understand that "Executor" really means "Administrator".
Do I need to repeat this to you?

Just got out of a meeting w/my attorney. Zigner, you've been wrong on this subject right out of the gate. Even with your dazzling 3,200+ 'expert' posts on this site, you're incorrect and possibly just trying to be misleading anyway

Do I need to repeat this to you?

 

[Zigner]

Just got out of a meeting w/my attorney. Zigner, you've been wrong on this subject right out of the gate. Even with your dazzling 3,200+ 'expert' posts on this site, you're incorrect and possibly just trying to be misleading anyway

Do I need to repeat this to you?

You are a liar, plain and simple, if you want anyone to believe that an attorney told you that the Executor is the Judiciary in your matter.

 

[Silvi 2]

You are a liar, plain and simple, if you want anyone to believe that an attorney told you that the Executor is the Judiciary in your matter.

Good laord, now you're up to 3,300 PLUS posts. Do you have a certificate proving that you're an official internet expert? Hey, at least justblue gave you a LIKE L.O.L.

BTW, "exec is the judiciary" is not the issue......the issue is that you're a fraud. But, keep posting, it's rather amusing