Who Is The Client?

The Oklahoma Supreme Court recently decided a case that raises questions with respect to a lawyer’s duty of loyalty to a client who may have a diminished capacity. The lawyer had been hired by the client’s great-niece and husband. The client was “98 years old, profoundly deaf, and largely bedridden, but continued to to live in her own home, attended by paid nurses.” As the  court describes:

“Linda and Stuart Smith [the great-niece and her husband] came from their home in Georgia to stay in Mrs. Corr’s home in late 1999. On December 29, 1999, they hired E. Elaine Schuster as Mrs. Corr’s new attorney. This is reflected by a contract of attorney employment signed by the Smiths and Mrs. Corr. That same day, Ms. Schuster came to Mrs. Corr’s home and obtained her signature on a document giving Stuart Smith a power of attorney and Linda Smith a secondary power of attorney. Ms. Schuster then demanded financial records from Mrs. Corr’s step-son and from Mrs. Corr’s accountant and long-time friend, Warren Crum. When Mr. Crum did not comply, he was fired and Ms. Schuster hired a new accountant for Mrs. Corr.

At this point, the Corr family and Mrs. Corr’s friends were largely excluded from her life. Armed guards were posted outside of Mrs. Corr’s home and security cameras were installed. Her step-son was barred from entering the home on February 16th and 17th. His sons were also prevented from contacting or visiting Mrs. Corr. However, Mrs. Corr’s step-nephew, Edwin Corr (a professor at the University of Oklahoma and former United States ambassador), was allowed to enter the home to visit with Mrs. Corr on February 18th. According to him, she did not know that her step-son had tried to visit and stated that she wanted her step-son to visit and asked Edwin Corr to come again. After that, Edwin Corr was barred from further contact with Mrs. Corr.

On February 16, 2000, Mrs. Corr executed an amendment to her trust naming Stuart Smith co-trustee and successor trustee, effectively disinheriting the Corr family, and substituting Mrs. Corr’s nieces as the primary beneficiaries. The Smiths and Mrs. Corr also signed a new contract of attorney employment with Ms. Schuster reflecting the change in circumstances brought about by the fact that Mrs. Corr’s step-son had named Stuart Smith in a lawsuit over the power of attorney. Mrs. Corr then executed a new will on March 3, 2000, to reflect the changes in the trust amendment.

The Corr family regained access to Mrs. Corr in the beginning of March. On March 11, 2000, Mrs. Corr executed a new power of attorney in favor of Martha Garrison, who then retained a new attorney for Mrs. Corr. The district court declared on March 16, 2000, that Mrs. Garrison’s power of attorney superceded Stuart Smith’s. Ms. Schuster refused to accept the court’s decision and, after the hearing, went to Mrs. Corr’s home, insisted that she was still Mrs. Corr’s attorney, and refused to leave until Mrs. Garrison fired her. Stuart Smith was also removed from Mrs. Corr’s home the same day.

   After Stuart Smith and Ms. Schuster left Mrs. Corr’s home, the Smiths executed a third attorney employment contract with Ms. Schuster at her office. The next day, March 17, 2000, the Smiths, represented by Ms. Schuster, successfully obtained a special guardianship over Mrs. Corr based on their representations that she was incompetent. It is unclear whether Mrs. Corr received notice of the petition for the special guardianship (the record contains nothing to indicate that she did), but the attorney retained on Mrs. Corr’s behalf by Mrs. Garrison was certainly given no notice. The special guardianship rendered void the court-approved power of attorney Mrs. Corr had just given Mrs. Garrison. (There is nothing in the record to indicate whether Ms. Schuster informed the guardianship judge about the previous day’s hearing and ruling on the competing powers of attorney.) Once again, the Corr family and friends were excluded from Mrs. Corr’s home.”

The court held that the parties that had prevailed in setting aside the trust amendment were entitled to recover attorneys’ fees and costs. While the court was clearly critical of the lawyer’s conduct (“In league with Ms. Schuster, the Smiths used their influence to cause Ms. Corr to change her will, a direct breach of trust”), the matter was not referred to the disciplinary counsel for investigation. Perhaps it should be. (Mike Frisch)