Estate Of Conflict

The Ohio Supreme Court has ordered a stayed six-month suspension for an attorney’s ethical violations in the course of a probate matter]

In July 2012, Deborah Lewallen retained Robertson to represent her as the executor of her father’s estate. Three of Lewallen’s siblings and seven of the decedent’s grandchildren—who were also beneficiaries of the estate—thereafter attempted to remove Lewallen as executor and filed objections to the estate inventory, arguing that Lewallen and her husband had improperly removed items from the estate. Upon Lewallen’s request, Robertson also agreed to defend her and her husband against her family members’ objections and attempt to remove her as executor.

Robertson, however, failed to explain to Lewallen that his representation of her and her husband in their personal capacities created a conflict of interest. Specifically, the board found that “[t]o the extent the claims of the Lewallen’s [sic] other family members implicate[d] potential wrongdoing that would diminish the estate, Respondent [could] not simultaneously discharge his duty of undivided loyalty to the estate while undertaking a similar duty to the alleged wrongdoer.” Accordingly, the parties stipulated and the board found that Robertson’s dual representation of Lewallen in her individual capacity and in her role as fiduciary of the estate violated Prof.Cond.R. 1.7(b) (prohibiting a lawyer from accepting or continuing representation of a client if a conflict of interest would be created, unless the affected client gives informed consent in writing).

The family members eventually withdrew their request to remove Lewallen, and due to the extensive litigation, Robertson filed applications with the probate court for partial payment of attorney fees. A local rule, however, required that attorney fees for the administration of   fiduciary’s final account and with prior court approval. Accordingly, the judge held Robertson’s applications in abeyance until the estate was ready to be closed.

Notwithstanding the local rule and the court’s order, Robertson asked Lewallen for payment of his fees, with the understanding that the estate would eventually reimburse her when it was terminated.

The court cited mitigating factors but

And as the board noted, no matter how well-intentioned
Robertson was, he should have recognized that he had created a conflict not only
by accepting representation of Lewallen in her individual capacity—after having
already agreed to represent her as fiduciary of the estate—but also by spending a
significant amount of time defending against the allegations asserted by the estate’s other beneficiaries.

(Mike Frisch)