Attorney Conflict of Interest ??

[milehightrustee]

What is the name of your state (only U.S. law)? Colorado

I previously started a thread titled, "Interference from Relatives", that will give information about this case instead of retyping the entire thing.

It was ten years ago that the Trustor had his Will and Trust drawn up by the Trust Attorney. This is a small community we live in and lots of people know each other. The attorney is a very honest, well known Trust Attorney and has been in practice for about 40 years. He has done things for my own family in the past. I have never heard anything but good comments about this man. I also have no reason to not trust him

My concern is and has been the possibility of a "conflict of interest". The reason I am a little bothered is because the Attorney also does legal work for the brother that is such a scoundrel. He probably makes quite a lot of money from the brother as he does not only the brother's own Trust work but also many other legal matters for the brothers businesses.

I made a special appointment one time a couple years back to discuss just this issue with the attorney. I asked him if he could be impartial for one thing. I also asked him what would happen if the brother were to Contest the Trust or even go as far as trying to have me removed as the Trustee of his brother's Trust and or remove me as the brother's POA. He told me that he seriously did not think that would happen as he has no grounds on which to file a lawsuit and that even if he did we would at that time each need our own attorney's including him.

So, what do you people think. Should I continue to use this attorney even though he also works for the scoundrel brother or should I get another attorney to handle the legal issues of this Trust of which I am the Trustee. I am legally obligated to defend this Trust as it is written no matter who drew it up in the first place and if it takes having to hire a different attorney I should probably do that. So far there have been no indications of a problem, but I also have to look at the future.

I hope I have explained this well enough. If not, I will clarify anything I am asked.

Thank you.

 

[Dandy Don]

It should be obvious that there IS a conflict of interest--you even tipped your hand even telling him anything speculating about what your brother may or may not do. You had no business discussing anything with him. Get a different attorney for complete objectivity.

 

[milehightrustee]

It should be obvious that there IS a conflict of interest--you even tipped your hand even telling him anything speculating about what your brother may or may not do. You had no business discussing anything with him. Get a different attorney for complete objectivity.

Dandy, uh, perhaps you should read more carefully prior to making a remark. No where in any of my postings did I state I had a brother. I don't even have a sister. Never have had.

I don't want to argue with you and won't. I wanted opinions, you gave me yours so let's leave it at that. OK.

You obviously are not an attorney nor do you have the facts that I have stated in my other thread. Thank you for your input however.

 

[tranquility]

A few things. First, list etiquette would have you put this question in the other thread. Few people care enough about your issue to be chasing around threads. Second, it's fine to be snippy to someone's advice you don't like, we all do it to some degree. However, you are the one looking for something and being snippy to someone who went out of his way to try and help is not going to give you the goodwill of other members of the forum. Especially when your main criticism seems related to YOUR breach.

Finally, there is clearly a conflict of interest here. An attorney advising you regarding the issue of if one of his clients may sue you is almost assuredly an ethical breach. Also, if the brother did sue to challenge the trust or POA, the attorney would not be allowed to represent him on motion from you for conflict of interest. If the attorney knew all the facts beforehand of what advice you were looking for, he should not have taken the appointment. Once you asked about his client, he should have ended the interview. The days of only one attorney in town was a long, long time ago and ethical rules have developed to prevent things just like this. In other words, Dandy Don was correct.

 

[milehightrustee]

I think that sometimes with forums it is hard for people to really explain in detail the situation and make someone else understand exactly what they are asking about.

I believe you both are correct in saying there could be a conflict of interest. That was my thinking also. Not all cases are the same. This attorney I speak of has been in business for about 40 years and he has done work for many many people in this community. I like the guy a lot and he is as honest a man as you will ever find. His father was the same and did work for my Grandparents etc. You don't have a family that stays in business that long with the reputation they have if they are not honest. He is the attorney that drew up all the paperwork for this Trust.

Personally, I just think it would be better to have someone that is "on my side" without any question and I am in touch with my best buddy who was the District Attorney in this county for the past 20 years, he is now retired. I have asked him the same question and will take his advice.

Thank you all for your time and I am sorry I seemed "snippy". I am careful and I take this job seriously.

 

[tranquility]

That was my thinking also. Not all cases are the same. This attorney I speak of has been in business for about 40 years and he has done work for many many people in this community. I like the guy a lot and he is as honest a man as you will ever find. His father was the same and did work for my Grandparents etc. You don't have a family that stays in business that long with the reputation they have if they are not honest. He is the attorney that drew up all the paperwork for this Trust.

None of this is relevant to the ethical concept of conflict of interest.

Thank you all for your time and I am sorry I seemed "snippy". I am careful and I take this job seriously.

You have done nothing wrong as a fiduciary from these facts. It is the attorney who has a problem and who has acted, most probably as I don't have all the facts, unethically. In fact, it's a good trick, what you did, if you could get away with it. A good story about the genius of OJ Simpson's attorney Robert Shaperio is that he contacted all the top forensic people immediately once he was hired. Had an hour consultation or somesuch. That prevented the top people in the nation from testifying on the State's side in the case. Awesomely clever. Same here.

 

[anteater]

I'm sorry, Tranq, but I just don't see where the attorney has acted unethically. Although, if the OP has expressed the same feelings to the attorney as he has on this forum rather than simply posing a hypothetical about the soundness of the trust, I think that the attorney would be wise to withdraw. And (if I am interpreting what the OP said the attorney's response was correctly), the attorney stated that he would have to be outta there if the brother/brother's family took any action regarding the trust.

I am not questioning the OP's faithfulness to his fiduciary duties, but it is obvious that he despises the brother and the brother's family and is just itching for a fight.

I am hoping the brothers 2 kids will contest this Trust as I am ready to enforce the NO CONTEST clause and they will lose their shares which will go to the other 3. I will honor the trust, but if I get the chance they do not deserve any of it. They are evil people.

 

[milehightrustee]

I'm sorry, Tranq, but I just don't see where the attorney has acted unethically. Although, if the OP has expressed the same feelings to the attorney as he has on this forum rather than simply posing a hypothetical about the soundness of the trust, I think that the attorney would be wise to withdraw. And (if I am interpreting what the OP said the attorney's response was correctly), the attorney stated that he would have to be outta there if the brother/brother's family took any action regarding the trust.

I am not questioning the OP's faithfulness to his fiduciary duties, but it is obvious that he despises the brother and the brother's family and is just itching for a fight.

This whole thing is more involved than I could explain here on this forum. When I took over managing the estate three years ago I found a woman who had been hired and was conspiring with the brother to gain control of the Trustor and steal his property and money. They were well in to it. I put a stop to it. My daughter is a Detective with the County Sheriff's Department. She investigated the entire mess with two other Detectives. There were charges filed against the woman. Like I said, these people are evil and yes, I do despise the brother and his family, no doubt about that I am not itching for a fight but if that is what it takes it has already begun. The law is on the side of the Trustor, have no doubts about that. The IRS is hammering this woman for the money she stole prior to it becoming knowledge to me and the Sheriff's Office. She and her husband caused a "road rage" incident 3 weeks ago. He was killed. Those are the type of people I am dealing with.....

 

[tranquility]

I'm sorry, Tranq, but I just don't see where the attorney has acted unethically.

Certainly, we don't have all the facts. But, as I wrote:

An attorney advising you regarding the issue of if one of his clients may sue you is almost assuredly an ethical breach.

And, I did use an "if":

If the attorney knew all the facts beforehand of what advice you were looking for, he should not have taken the appointment. Once you asked about his client, he should have ended the interview.

 

[anteater]

Certainly, we don't have all the facts. But, as I wrote:
And, I did use an "if":

Yeah, I know.

It just seemed that the attorney was being beaten upon when he may have no real reason to believe that he has a conflict. (At least not yet.)

At the end of the day, the OP's gotta do what he's gotta do. If he's uncomfortable, then he goes to someone else for legal advice.

 

[milehightrustee]

I have now discussed this entire issue with my good friend who spent 20 years as the District Attorney in our county. He feels there is no conflict of interest. He knows who my Trust Attorney is and he says he is in no way going to do anything at all unethical, says he never has in all his years. Like I said, you would have to know the characters etc. and I just don't have the space to explain it all properly. I am now comfortable with the situation and will continue to do what is right and be the good guy. It is a very interesting situation and no doubt will get more so as time goes along.

 

[Dandy Don]

Your blind faith in people's supposed honesty is making you somewhat naive. When it comes to money and financial gain, if you think the attorney is going to have your best interest at heart when legally representing someone else. . . .

 

[tranquility]

If your district attorney friend in his discussion with you said anything like:

He knows who my Trust Attorney is and he says he is in no way going to do anything at all unethical, says he never has in all his years.

Then we are not talking about the same thing. "Ethics" is a set of rules and laws which are applied to attorneys. I find it unusual an attorney would not know this. A person's honesty (Which is more along the lines of what the DA seems to be talking about.) is something very different.

Here:

Rule 1.7 Conflict of Interest: Current Clients
RULE 1.7. CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

In the explanatory text I note and wonder if you and brother signed the required written informed consent.

[3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

Once people are talking of litigation the rules become quite clear. But, if the attorney was only trying to help further settlement, with a written, informed consent signed by both clients he would not be inherently barred from the meeting.

[28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

Conflict of interest has nothing to do with the honesty of the attorney or how long they've been in practice.

 

[milehightrustee]

I am beginning to think that maybe I have unintentionally misled some of you or did not explain properly. The Trust Attorney that drew up the Trust that I am the Trustee of is the same attorney that has also drawn up a Trust for the scoundrel brother and his family. Two brothers, one of which I consider a scoundrel and the other who is the Trustor of the Trust I am the Trustee of.

I was just a bit leary of using the same attorney as the scoundrel brother. I don't see how an attorney can be unethical simply because he does legal work for two brothers.

My concern was that "IF" someday the scoundrel brother were to challenge the Trust that I am the Trustee of because he wants his brothers property I might have a problem using my Attorney because he also "Knows" and does legal work for the brother. However, after talking with my District Attorney friend I no longer have that concern. Why? Because the attorney I use will defend the Trust he has written up against any and all people who may Contest it. Just because the same man has done legal work for someone who would end up challenging a Trust does not make the attorney unethical and if he feels there is a "conflict of interest" he is legally bound to advise me of that or face problems with the "bar".

I believe all is under control****************************Since I am not an attorney I probably did not explain this situation well enough.

I can drive jets very well as I did for thirty years. We all have our areas of expertise. Honesty however, is something you either have or you don't, regardless of your occupation.