Friday, June 28, 2013

Not Too Fine A Line

An attorney who drafted a will that appointed co-personal representatives engaged in misconduct in connection with the estate administration.

As a result, he was  reprimanded by the North Dakota Supreme Court.

The facts:

In 1999, McIntee prepared a will for Eleanor Striha. Following her 2004 death, McIntee met with the co-personal representatives of the estate to open the will and begin the probate process. The co-personal representatives were siblings, and both were beneficiaries and devisees under their mother's will, along with two other siblings. Having prepared the will, McIntee was aware the distribution of the farmland to the children included severe limitations on the use and enjoyment of the land they inherited. McIntee did not discuss any problems or issues that may arise in situations when two co-personal representatives are appointed. He did not advise Ritterman that, as personal representative of her mother's estate, she could hire her own attorney, and no written fee agreement between McIntee and Ritterman was executed employing McIntee to act as her attorney in administering her duties as co-personal representative of her mother's estate.

He proceeded to represent one of the personal representatives in litigation:

The Hearing Panel determined McIntee should have been aware of the possibility that his clients, the co-personal representatives, would have different perspectives on the handling of the estate, and should have known his representation of Ritterman might be adversely affected by his responsibilities to Michael Striha. At the time McIntee assumed representation of Michael Striha and Ritterman, he was required to have obtained the consent of Ritterman to the common representation after consulting with her, which he did not do. Additionally, after becoming aware of Ritterman's unhappiness, McIntee did not advise Ritterman, as co-personal representative, that she could hire her own attorney, or did he advise her of the advantages and risks involved in the common representation. Instead of threatening her with a will provision he knew might be unenforceable, and advising her he did not represent her individually, McIntee should have withdrawn from his representation of Ritterman as co-personal representative, or obtained her consent to his continued representation.

And did not see the problem:

The Hearing Panel found that McIntee represented both Michael Striha and Ritterman as co-personal representatives of the estate of their mother. Additionally, the Panel rejected McIntee's assertion that his representation of Ritterman as personal representative does not preclude him from later bringing an action against her personally in a substantially related matter, stating that his assertion "paints too fine a line -- the general public will not understand the distinction, and most people will feel betrayed just as Ritterman does in this case."

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/06/an-attorney-who-drafted-a-will-that-appointed-co-personal-representatives-engaged-in-misconduct-in-connection-with-the-estate.html

Bar Discipline & Process | Permalink

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