A New York Probate Lawyer said this probate proceeding, two of the three preliminary executors move for an order disqualifying their former attorneys from representing the objectants; the motion is opposed.
A New York Will Lawyer said that the decedent died in November 2010, survived by a spouse and two adult children. The decedent executed a will in 1990, a first codicil in 2003, and a second codicil in 2010. In the first codicil, the decedent appointed his son, his attorney, and his accountant, as co-executors and co-trustees. Objections have been filed by decedent’s children only as to the second codicil, the only dispositive provision of which leaves the decedent’s residence in Sands Point, New York to the decedent’s spouse; the will had merely provided her with the right to occupy the decedent’s residence for up to eighteen months after the decedent’s death.
Nassau County Probate Lawyers said the lawyer and the accountant filed a petition for the probate of all three instruments and for the issuance of letters testamentary and preliminary letters testamentary to the two of them, to the exclusion of the son. As indicated above, the son and his sister objected to the probate of the second codicil, and also to the prayer for the issuance of preliminary letters solely to the lawyer and accountant. The dispute regarding the preliminary letters was resolved and preliminary letters testamentary issued to all three nominated executors in February 2011.
The son filed objections to probate the second codicil. The objections contain the usual allegations of: (l) failure of due execution; (2) lack of testamentary capacity; and (3) fraud and undue influence.
A Staten Island Probate Lawyer said during the pendency of the probate proceeding, the son, in his capacity as one of the preliminary executors of the estate, commenced a discovery proceeding against the decedent’s spouse, alleging that she had wrongfully obtained certain assets of the decedent. The retained counsel of the son also prepared a separate letter, addressed to all three preliminary executors, acknowledging that the firm was not only representing all three of them in the discovery proceeding, but also representing the son and his sister as objectants to the second codicil.
The son’s position in both the probate and discovery proceedings is that the decedent lacked capacity. If the co-executors had adopted this position in the discovery proceeding, it would conflict with their prima facie burden in the probate proceeding to establish the testamentary capacity of the decedent. In addition, the decedent’s mental and physical conditions have a bearing on the allegations of fraud and undue influence which are common to both proceedings.
Despite the attempt by the firm to relegate the co-executors to the status of nominal petitioners in the discovery proceeding, they were, nevertheless, clients of the firm. The conflict which arose at the son’s deposition in the probate proceeding illustrated the inability of the firm to represent the proponents and the son simultaneously.
The son had previously testified that: (1) the lawyer refused to help him obtain information concerning the transfer of the bank accounts during the decedent’s lifetime; (2) the decedent lacked testamentary capacity; and (3) this fact was known to Aiken and the surviving spouse.
At the deposition, counsel for the proponents argued that the bank accounts were the proper subject of inquiry as it was alleged in objectants’ bill of particulars that the transfers were part of a plan to defraud the decedent. The examination was suspended to permit proponents’ counsel to make this motion to disqualify. The surviving spouse supports the motion.
An attorney may not accept employment if it is likely that he will be representing differing interests. Disqualification can be mandated not only where there is simultaneous representation of conflicting interests in the same proceeding, but where there is simultaneous representation in separate proceedings. Proponents argue that the original representation was improper and the attorneys remain in a position adverse to their former clients.
The firm contend that any conflicts caused by the initial representation of adverse interests or the current representation of the son were obviated by the consent of all parties to dual representation. A consent to the simultaneous representation of adverse interests requires full disclosure of the implications of the representation and a reasonable belief on the part of the attorney that he is not in a position of divided loyalty. Neither of these requirements are met.
The objectants argue, in the alternative, that there is no prejudice to proponents as former clients as there were no confidential communications between the proponents and the firm concerning the bank accounts. A party seeking disqualification of an adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel; (2) that the matters involved in both representations are substantially related; and (3) that the interests of the present client and former client are materially adverse. Proponents have clearly satisfied this test.
Moreover, the rule relating to former clients does not apply under these circumstances. Where there is an initial simultaneous representation of adverse interests and a successive representation, the rule pertaining to simultaneous representation takes precedence. The attorneys must meet the higher standard of no actual or apparent conflict at the time of the initial representation.
It is not clear whether Steinberg’s objections on behalf of the lawyer at the deposition were intended to protect the lawyer, or if the intent was to protect the interests of the son. In any case, the conflict caused by the dual representation was made clear at the deposition.
The court finds that the firm failed to establish that there was no conflict in their simultaneous representation of the proponents and the son.
Accordingly, the motion to disqualify is granted.
Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers who will help you file a petition in Courts for the probation of the last will and testament of a decedent. We also have Nassau County Estate attorneys who will inform and guide you on how to properly distribute your estate in accordance with law. Call us now for more information