lktknow

I have a question about lawyers.
We'll make it hypothetical.
There is a Irrevocable trust formed.
The person dies.
Two people are having a difference of opinion about the trust. One is a beneficiary, the other is the executor. The executor's lawyer clearly stated to the beneficiary, that he is representing the executor, not them.
The beneficiary goes to a lawyer to retain him for themselves.
The lawyer they choose, at the very first meeting, tells the beneficiary, that him and the lawyer for the executor are very good friends.
The beneficiary does not truly understand the implications regarding what they were told. (as far as the two lawyers being very good friends), and retains the lawyer anyway.
This is the question:
Shouldn't the lawyer have told the beneficiary that it would be a conflict of interest for him to take the case? (because of the fact of him and the other lawyer being very good friends)
I have pondered this, and know that lawyers usually have lawyers for friends, so where do , or should they draw the line as far as the conflict issue?

Willravel

It probably should have been disclosed, but when you work in law you tend to know everyone already. Unless there's evidence that the friendship actually presented a conflict of interest, there's nothing actionable.

If they were just friends and nothing illegal happened (like purposful bad advice), then their friendship is irrelevant.

lktknow

we are going to get out of the hypothetical now. Because if I explained the entire way things went down, the beneficiary got the shaft, any way you look at it. To the point of illegal, maybe, not sure. I'm just not sure if anyone would really want to hear what happened and give an opinion. (it gets a bit involved, but nothing I couldn't explain that you could'nt follow.)

Willravel

Just fyi, I'm not an attorney (yet...muhahah), but I strongly suspect based on my limited understanding of the law that the conflict of interest has to be proven beyond a reasonable doubt if you're serious about pursuing it. You'd need evidence, starting with any bad advice, then establishing that the bad advice was given intentionally. That's a huge burden of proof, imho.

If you'd like to give a more detailed account, I'd be glad to read it and give you feedback.

The_Jazz

Lawyers have lawyer friends all the time. All my friends who are lawyers have introduced me to their lawyer friends many times.

So what.

The issue here isn't conflict of interest. Being friends with opposing counsel should be irrelevant. Not representing your client to the best of your abilities is the issue here.

It sounds to me like you may have a case for malpractice against your attorney. If he screwed you over because he placed his friendship first, then that is definitely malpractice. You need to show some form of loss though.

I'd say from here that these questions are best taken out of the hypothetical and addressed to a real attorney who can answer the real-life questions. I don't think that any of us are really qualified.

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maleficent

I'm not a lawyer, but I've been related to one for the past 42 years and I pay attention... If the lawyer felt it was a conflict of interest, he would have said so... as much a bad rap as lawyers get - they have a pretty rigid code of ethics that they have to abide by... and it's not worth disbarrment for ignoring those ethics...

My father has represented people where he's socialized with the opposing counsel or the judge most of his career... It's not a conflict of interest at all... Jazz has it right -it's the lawyer's job to represent his client to the best of his/her ability... if they deliberately screwed up a case, that's one thing, but his friendships aren't a factor at all...

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lktknow

Thank you willtravel for the offer of feedback, it is appreciated.
the jazz is right when they said it should be addressed to a real attorney in the real world, but it's more or less a done deal, so, it's a case of crying over spilled milk.
Not much can be done about it now, other than reflect on what could have been. or at least that's the way I see it.
To prove malpractice would be virtually impossible, I think. I could sure do a lot of screaming about unethical though.

Here's the deal. Beneficiary lived with the person who had the Irrevocable trust for ten years, as man and wife, commingled funds and all. They had all intention of getting married legally but just kept putting it off. Lack of time to go to the registry office, worked 7 days a week, and so on. Beneficiary and the person did go to the lawyer and have the stipulations as to what the beneficiary would get upon the persons demise put into the irrevocable trust.
The person got sick to the point of having to be hospitalized. All the person wanted to do was come home, he knew he was dying. They kept transferring him to different hospitals with the intentions of getting him stronger to undergo chemotherapy. Never asking him what he wanted. Beneficiary had no say in the matter, as was only girlfriend, according to the legalities of it. Person would beg beneficiary when visited, to find a way to just let him come home. The executor (his daughter) was blocking his coming home. Doctors said man could come home with a nurse 24 hours, but said there was risk involved. Daughter would not even talk about letting him come home. Plus she never came to see him, and he was very upset about that. Extremely upset. He kept asking the beneficiary to find some way for him to be able to come home and die in his own home. Daughter put him in nursing home. Beneficiary had a marriage performed by a legal minister at the nursing home, with the man readily agreeing to it. Within two days man was home with nurse 24/7, and satisfied that he was going to be able to die in his own home, and not a nursing home with people he didn't even know. Person died three months after being home.
The Irrevocable Trust:
The provisions for the beneficiary in the trust were clearly stated. Beneficiary had no problem with the provisions, and felt it was fair, and was satisfied with the provisions as they were.
The lawyer and the daughter had went to the nursing home to get the man to sign a amendment to the trust in which there was a clause stating "if beneficiary and I are married on the day of my death."., and it changed the provisions as to what the beneficiary would receive. Man refused to sign it.
Beneficiary also had a copy of the original irrevocable trust. Plus was sent a copy of the amendment, which was not signed.
Executor and daughter set about putting the amendment into affect, even though it was not signed. With complete disregard to the original trust.
Beneficiary decided it was time to retain a lawyer of their own.
One of the most prestigious law offices in town, with there being a total of 6 lawyers on staff. Initial meeting was with the highest up in the law firm. Beneficiary explained the facts as to what was going on, telling him the daughter and her lawyer were going by the amendment to the trust, which was never signed by the man.
The lawyer said he knew the other lawyer, and golfed with him, and was friends, and had a hard time understanding why the other lawyer would do something so blatantly unethical. Lawyer told beneficiary they qualified for what is known as "the omitted spouse" because beneficiary was not actually mentioned in the original trust. And it had changed because the man and beneficiary were now married. Lawyer said it mattered not if the marriage was 20 minutes or 20 years as long as it was legal, which they found out it was totally legal.
Lawyer told beneficiary that as an omitted spouse, she was entitled to half of estate. Estate was valued at approximately 15 million
I will write more this evening. this is already a lot to digest, and I appreciate the time you give to it..

The_Jazz

Thus far I see nothing unethical, illegal or even out of place.

I'm sure that part is coming, though.

__________________
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin
"There ought to be limits to freedom." - George W. Bush
"We have met the enemy and he is us." - Pogo

Willravel

Agreed, so far it's really just average stuff.

MuadDib

It's questionable, but it remains that the hypothetical fact of the friendship was disclosed. The implications are not facts and were left to the beneficiary to arrive at. I think the lawyer met his ethical duty by disclosing the friendship before he was retained. Believe it or not, the legal field is a relatively small community and because of that most lawyers know their fellow lawyers within their community and are friends, of a sort, with them. I assume that different from the 'good friend' situation here, but still the standard for showing an ethical violation or malpractice here is going to be pretty high.

Also, I want to point out that the implication is not so one sided. In many cases having attorneys on friendly terms with one another can be beneficial by allowing a greater latitude within the rules and by increasing the chances of a mutually beneficial settlement. Of course, if the friendship is clearly dominated by one 'friend' this could be problematic.

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thingstodo

I don't think it would be a conflict of interest unless the lawyer was a friend of one of the litigants.

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lktknow

I was a bit surprised when I said the lawyer and the executor started going by the amendment to the trust, which had not been signed, and not the original trust.
But you all seem to think, or have stated there was nothing illegal or unethical about it, so??
Beneficiary's lawyer contacted executors lawyer requesting all the paper work involved in the case. They drug their heels and sent only parts of it. There was an original trust, and then a revised one where the man put the beneficiary's provisions inn it. They only sent the original one and not the revised one, also did not send the amendment .
In the process of all this with the consultations between the beneficiary and the one lawyer with the firm, (another lawyer, not the head of the firm) the one who does mostly litigation, the lawyer was gung ho to actually go for the 1/2 of the estate. Stating all the reasons why the beneficiary had every right to half of the estate.
Executor's lawyer finally sent a copy of the revised trust, but the lawyer had added a clause to the area in which the beneficiary was mentioned. It was only obvious the clause had been added, because the table of contents did not coincide with the page numbers because of the addition of the clause.
Beneficiary could not locate her original copy of trust. People had been to the house and it seemingly came up missing. When it was mentioned, Executors lawyer sent beneficiary another copy, only it was the one with the added clause.
Beneficiary's lawyers kept pressing beneficiary to go for the entire half of the estate.
a tolling had to be filed, with the executors lawyer and her agreeing to the tolling.
Beneficiary's lawyer , the head of the firm, had meeting with executors lawyer.
After that, everything came to a grinding halt.
The other lawyer with the beneficiary's firm, told beneficiary they were going to come to a decision as to what would be a fair outcome of the matter. Executor's lawyer drew up an agreement, beneficiary's lawyer suggested strongly that she accept it. Beneficiary's lawyer knew beneficiary was not pleased with the outcome, but still suggested strongly that she accept it and sign it and get it over with. The agreement was basically the same provisions for the beneficiary as what was in the original trust, with a few things from the amendment that was not signed thrown in.
What the beneficiary got, basically, was an apartment for life with a very modest income for life , with a cost of living raise . The man owned apartment buildings, and other real property, but beneficiary got none of it. oh plus the executor was the one who got everything else.

The_Jazz

I don't still don't see anything unethical or illegal. You've implied that you think some sort of back-room dealing was going on but you haven't stated that or provided any proof other than "things changed".

If the original copy that went missing was different than what you were supplied, then you're taking about document fraud, and that's a crime. If you're unhappy, talk to another lawyer, preferably one in another city with no connection. A consultation won't cost you much and will most likely give you some peace of mind if nothing else.

__________________
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin
"There ought to be limits to freedom." - George W. Bush
"We have met the enemy and he is us." - Pogo

lktknow

I really appreciate your reply, and I do not want to seem as if I am arguing anything you have said. Also, I am wondering if I am not seeing the big picture or am seeing it through distorted eyes. Or maybe I just don't know how things truly work in the lawyer field.
If you saw nothing wrong with the executor's lawyer ADDING a clause to the trust, AFTER the person had died, then I must be confused.
The beneficiary's lawyer, (not the head of the firm, but another one at the firm) wholeheartedly agreed that the clause did indeed seem to be added. He was telling beneficiary that the courts or the lawyers are now even confiscating hard drives from computers to enforce documents were as they are supposed to be at an earlier time, and nothing had been altered.
This particular lawyer was very adamant as to going forward with the case, and proving that the executor and her lawyer were not doing things right. Just the fact of them going by the amendment they had taken to the hospital for the man to sign, which he refused to sign it, but they were treating it, as the way things were going to go , completely disregarding the original trust, did not seem to be the way they were supposed to be handling things. The amendment had changed the provisions given to the beneficiary in the original trust, but the man refused to sign it.
Like I said, the beneficiary lawyer was totally ready to go into court or litigation with no resolve until things were done right, but it was at this point that the head of the firm had a meeting with the executors lawyer, which was a friend, and then the beneficiary lawyer said everything had changed, and we were going to accept anything they offered.. WHAT??

DDDDave

I realize this is all hypothetical and all but did you have an opportunity to read the entire Trust document? Many times there is a clause in the document that essentially states that if any of the beneficiaries of the Trust contest the Trust they are automatically cut out of any disbursements. It doesn't seem fair but it prevents one beneficiary from delaying the administration of the Trust by means of a lawsuit. The senior lawyer may have convinced everyone that it would be in their best interest to take what there was instead of spending it on lawyer fees. A Trust can spend $100K on lawyer fees and admin. costs quickly.

You still said this.....The agreement was basically the same provisions for the beneficiary as what was in the original trust, with a few things from the amendment that was not signed thrown in.......so things didn't really turn out much different than the Grantor intended.

I was an administrator for a Bank Trust department for five years and these kind of situations happened all the time.

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