Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, December 24, 2015

Attorneys, Accountants, And Financial Planners Face Liability Concerns About IRA Advice

Business_expenseA large number of Americans have individual retirement accounts (IRAs) that estate planners often use to help their clients manage assets. There are many estate planning attorneys, accountants, and financial planners that have to face headaches about the potential for liability over their management of a client’s IRA account. This article provides examples of hypothetical situations where different estate planning professionals encounter issues that cause them to become open to personal liability. The rules and regulations governing traditional IRAs, Roth IRAs, taxes, and all of the other issues dealing with IRAs can be very complex and very few individuals are gurus in this subject material. People that are involved in a profession dealing with IRAs or estate planning in general should use prudence and caution when making decisions.

See Seymour Goldberg, New Liability Concerns for Accountants, Financial Planners and Attorneys Regarding IRA Advice, Accounting Today, December 23, 2015.

December 24, 2015 in Elder Law, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)

Friday, July 31, 2015

Probate Court Clerk Pleads Guilty To Stealing $232,000

JudgmentIn Savannah Georgia the longtime Chatham County Probate Court Chief Clerk Kim Birge has plead guilty to stealing $232,000 in a scheme. The Clerk confessed to raiding certificate of deposits belonging to other people for her own benefit. The government case alleges that the clerk used U.S. Mail and private commercial carriers as a part of the scheme. Kim Birge apologized to the clerk for her role in the scheme that involved stealing more than $750,000 in a three-year period. “I have asked God for forgiveness and I am asking this court for forgiveness as well.”

See Jan Skutch, Chief clerk pleads guilty to stealing $232,000 from Chatham County Probate Court, Savannah Morning News, July 31, 2015.

July 31, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility, Wills | Permalink | Comments (0)

Thursday, July 30, 2015

Attorney Who Embezzled $115,000 Sentenced To One Day In Jail

JudgmentAn 84 year old Cleveland Attorney who pleaded guilty to stealing $115,000 from a client’s estate has been sentenced to serve one day in jail. Gerald Cooper, who practiced law for 57 years, originally could have faced a 15 to 21 month sentence. The attorney was given a lighter sentence due to his age and health problems. The article indicates that Cooper has colon cancer and is starting to experience signs of dementia. Even though he will only serve a day in jail, this conviction does represent a blemish on Cooper’s record and reputation.

See Eric Heisig, Cleveland attorney who stole $115,000 from client’s estate gets one day in jail, Cleveland, July 29, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

July 30, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)

Thursday, July 16, 2015

Malpractice Claims Are Having A Major Impact On Law Firms

Law firmAs law firms constantly try to stay ahead of the changing legal market they can often fall victim to malpractice claims.  The frequency of claims being brought against law firms remain above pre-recession levels.  The highest numbers of claims are in the area of law dealing with trusts and estates practice.  Conflicts of interest are a leading cause of claims; as firms grow and expand and then take on lateral hires potential conflicts can arise.  Law firms should be proactive and try not to ignore or overlook these issues. 

See Ames & Gough, Law Firms Face Large Malpractice Claims as Risks Grow: Study, Insurance Journal, July 10, 2015. 

July 16, 2015 in Malpractice, Professional Responsibility | Permalink | Comments (1)

Tuesday, June 30, 2015

In Florida, A Lawyer For A Guardian Vicariously Liable To Ward

GavelKarim Saadeh was an elderly immigrant who had accumulated a sizable fortune when, in his old age, he lost control of his estate after making a series of gifts to a younger women.  The court appointed a guardian for Mr. Saadeh and the guardian in turn hired an attorney of their own who assisted in advising Mr. Saadeh to sign a trust instrument that had negative implications for the estate. As a result, the guardians attorney was sued, among others, for malpractice but the case was initially thrown out for a lack of privity between Saadeh and the attorney.

In Saadeh v. Connors, the Florida District Appeals Court held that the attorney was liable to the ward of a guardian that was a client. The duty of care owed by an attorney, in these situations, extends to a third party that was intended to benefit from any advise offered. The third party may sue for malpractice and the claim will not be barred due to a lack of privity.

See Brian Spiro, Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward, Clark Skatoff, June 26, 2015.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-attorney-for-emergency-temporary-guardian-owes-duty-of-care-to-temporary-ward/#sthash.LV6NvW00.dpuf

June 30, 2015 in Guardianship, Malpractice, New Cases | Permalink | Comments (0)

Wednesday, June 17, 2015

New Hampshire Case Illustrates Importance Of Making Sure Client Is Competent

DevilAn ongoing case in New Hampshire involves a large estate, suspect will, dead testator, and beneficiary being asked many questions. At the heart of the matter is the competency to make a will, an issue that is likely to control the fate of a nearly $3 million estate. But in the quest to determine competency one thorny issue arose, the beneficiary had to shopped around to find an attorney for the testator due to the fact many lawyers would not assist due to the competency concerns.

Lawyer shopping can be a problem because not all people go about it with malicious intent; some people just want to find the right representation and are picky in choosing. Whenever faced with an apparent case of shopping, take extra care to make sure the would be client is not being abused or taken advantage of by the people around them. A little observation now can save much hassle for the innocent and stop those with devilish intent.

See Webber Case Shows Importance of Establishing Capacity, Fosters, May 15, 2015.


June 17, 2015 in Current Events, Malpractice, Wills | Permalink | Comments (0)

Tuesday, June 16, 2015

Disbarred New York Attorney Charged With Grand Larceny And Practicing Law Without A License

JusticeA New York man who was disbarred about five years ago has been charged with stealing more than $34,000 from a client couple.  The State alleges that John Giordanella misrepresented himself to the couple by making them believe that he was still a practicing attorney.  The couple, believing that he was a licensed attorney, hired Mr. Girdanella to handle estate matters and gave him six checks totaling $34,247.  If convicted, Mr. Giordanella could face up to seven years in prison. 

See Disbarred attorney charged with stealing $34,000 in funds, Queens Chronicle, April 23, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 16, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)

Tuesday, June 2, 2015

Malpractice & Ethics Article Available on SSRN

MalpracticeI recently posted on SSRN my article entitled Avoid Being a Defendant: Estate Planning Malpractice and Ethical Concerns, 5 St. Mary's L.J. Mal. & Ethics 224 (2015).

Here is the abstract of the article:

An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney’s conduct may have lapsed below ethically acceptable standards.

This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader’s attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader will avoid the ramifications of drafting a flawed estate plan or having a lapse of ethical good judgment which may lead to the frustration of the client’s intent, financial loss to the client or the beneficiaries, personal embarrassment, and possible disciplinary action.

June 2, 2015 in Articles, Malpractice, Professional Responsibility | Permalink | Comments (0)

Wednesday, May 27, 2015

North Carolina Lawyer Who Misappropriated $1.6 Million Loses License

PeterCapeceA North Carolina attorney who worked for a prestigious Lincoln County law firm has been disbarred after admitting to misappropriating $1.6 million from an estate that he was executor of.  Peter Capece, who was executor of the estate of Fritz Detmers, used the money that he misappropriated for his own personal gain.  Judge Donald Stephens ruled that the disgraced attorney will lose his license for at least five years.  Capece has also been fired from the Jonas law firm, which released a statement expressing it was “dismayed that a former employee, a person we invited into our firm and treated as one of our own, would betray the trust of a client.”

See Joe Marusak, Lincoln County Lawyer Disbarred For Misappropriating $1.6 Million, The Charlotte Observer, May 20 2015.

 Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 27, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2015

Connecticut Attorney Arrested On Accusations Of Embezzling $1.8 Million

GavelA Connecticut attorney has recently been arrested on accusations that he embezzled $1.8 million from the estate of Miriam S. Strong.  Peter M. Clark was removed from his position as co-executor of Strong’s estate back in March when $1.8 million in money that was bequeathed to the town of Oxford went missing.  Clark is currently facing a Federal mail fraud charge over the incident.   

See Attorney Accused of Embezzling $1.8 Million From Woman’s Estate, NBC Connecticut, May 21, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 21, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)