Thursday, March 6, 2008

Presumption Overcome

The Nevada Supreme Court held that an attorney had overcome the presumption of undue influence when his lawyer partner drafted a trust instrument that named him as a beneficiary. The court also held that, even if the conduct violated the Nevada Rules of Professional Conduct, the violation would not be the basis for a private cause of action. 

"[T]he district court properly found that Dabney [the attorney] had rebutted the presumption of undue influence with clear and convincing evidence.  The evidence contained within the record establishes that Woloson [the law partner] prepared Jane’s living trust in accordance to her instructions and desires and that Jane’s wishes were not a product of Dabney's undue influence. Accordingly, we conclude that the evidence supports the district court’s finding of no undue influence."

As to civil liability for violation of ethics rules:

"Even though SCR 158 and 160 apparently were violated when Woloson prepared Jane’s living trust benefiting Dabney, these per se violations did not afford William a private right of action to set aside Jane’s living trust. In Mainor, we held that an attorney’s violation of the professional conduct rules does not create a private right of action for civil damages, but that a violation is relevant to the standard of care owed by an attorney. Accordingly, we conclude that the district court did not abuse its discretion in refusing to set aside Jane’s living trust despite the apparent violations of SCR 158 and 160.  In reaching this decision, we reiterate that any violation of the Nevada Rules of Professional Conduct does not create a private right of action." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/03/the-nevada-supr.html

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