Fiduciary’s Right to Self-Representation: Attorneys who find themselves acting as estate fiduciaries should be mindful of the advocate-witness rule and, if litigation ensues, must assess whose interests are at stake before they (or their firms) continue representation.

Fiduciary’s Right to Self-Representation

October 10, 2007

Barbara L. MacGrady & Peter C. Valente

New York Law Journal

In a case of first impression, Surrogate Lee L. Holzman (Bronx County) recently ruled that a fiduciary of an estate does not have the same right to represent himself in his fiduciary capacity as he does individually. Estate of Walsh, 2007 WL 2390701; N.Y. Slip. Op. 27342. The fiduciary in question was also an attorney and the court relied on the advocate-witness rule to disqualify him. However, were the fiduciary a nonattorney, it is evident that the court would have reached the same conclusion.

Facts

The case involved a discovery proceeding under Surrogate’s Court Procedure Act (SCPA) §2103 where the executor sought to recover funds that were transferred by the respondent, as the decedent’s attorney-in-fact, during the decedent’s lifetime. The respondent asserted that the executor’s testimony was necessary to ascertain the factual circumstances surrounding the decedent’s execution of the power of attorney in favor of the respondent.

Accordingly, the respondent claimed that the attorney-executor was subject to disqualification on the basis of the advocate-witness rule set forth in the Code of Professional Responsibility, DR-5-102 (22 NYCRR 1200.21), which states, in part:

A. A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client . . .

B. Neither a lawyer nor the lawyer’s firm shall accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or another lawyer in the lawyer’s firm may be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client.

C. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, the lawyer shall not serve as an advocate on issues of fact before the tribunal . . .

D. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm may be called as a witness on a significant issue other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw from acting as an advocate before the tribunal. 22 NYCRR 1200.21.

There are some exceptions that will allow an attorney to testify in certain situations. See the full text of the rule for a list of those exceptions.

The rule is meant to address potential client-attorney conflict inherent in the different roles played by an advocate and a witness in the quest for truth. As noted in the Commentaries to DR-5-102, the “advocate takes the facts of a case . . . and places them in the best possible light for the benefit of his or her client [and] the witness testifies to facts without regard to their impact on either party. In short, the former argues the facts; the latter describes them.” In S&S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 NY2d 437 (1987), the Court of Appeals examined the conflicting interests of lawyers and their clients and stated that:

…the Code has rooted disqualification of a lawyer-witness in the concept that a lawyer’s professional judgment should be exercised for the client’s benefit, free of compromising influences and loyalties. A trial lawyer who functions also as a trial witness is thought to be more easily impeachable for interest, and thus a less effective witness for the client . . . . Recognizing that the roles of an advocate and of a witness are inconsistent, and that it is from a public image point of view “unseemly” for a lawyer in a trial also to argue his own credibility as a witness, the Code of Professional Responsibility directs that a lawyer who ought to be called as a witness on behalf of his client shall withdraw from the conduct of the trial . . . . 69 NY2d at 444.

For trust and estate practitioners, the advocate-witness rule is most commonly at play in contested probate proceedings, where the testimony of the attorney-draftsperson, now representing the proponent of the decedent’s will, is necessary. The majority view is that the attorney-draftsperson will be disqualified once the matter goes to trial, but may continue representation during the pretrial stage of proceedings. See Estate of Giantasio, 173 Misc.2d 100 (Surr. Ct. Bronx Co., 1997) and cases cited therein; contra Matter of O’Malley, 141 Misc.2d 863 (Surr. Ct. Renssalaer Co., 1988) (automatic disqualification of attorney-draftsperson in contested probate proceeding).

Litigants Right to Choose Own Counsel

In Walsh, Surrogate Holzman recognized that disqualification of an attorney under the advocate-witness rule implicates the rights of litigants to representation by counsel of their own choosing and that such rights will only be overridden “where a competing, compelling public policy reason exists” or “absent a demonstration that the testimony of the attorney will be necessary.” Courts have denied motions for disqualification where such a showing was not present. For example, in Estate of DiSalvo, NYLJ, May 9, 1997 at p. 35, col. 2 (Surr. Ct. Suffolk Co.), Surrogate Gail Prudenti denied a disqualification motion because the movant failed to demonstrate that the attorney’s testimony was essential to a contested probate proceeding. Surrogate Prudenti stated that while the advocate-witness rule is not binding on the court, it offers guidance to the court in deciding whether disqualification is warranted. However, the court also emphasized the need to consider “the litigant’s valued right to choose its own counsel” and stated that the party seeking to disqualify an attorney has the burden of establishing that “such a drastic remedy is warranted.” The applicable test, according to Surrogate Prudenti, is not whether the adversary intends to call the attorney as witness, but whether the attorney’s testimony is both necessary and prejudicial to his client. See also, S&S Hotel; Vecchiarelli v. Continental Ins. Co., 216 A.D.2d 909 (4th Dept. 1995).

Under the facts of the Walsh case, the decedent’s attorney-in-fact transferred cash belonging to the decedent into joint bank accounts held in the name of the decedent and his attorney-in-fact. The attorney-executor was claiming that the decedent lacked the capacity to execute the power of attorney in favor of the respondent, under which the respondent made the transfers. In his petition seeking turnover of the assets, the attorney-executor attached copies of correspondence between himself and the decedent’s friend indicating that the attorney-executor may have suggested the transfers and was aware that the decedent executed the power of attorney. Based on that information, it is evident that the attorney-executor’s testimony was essential to the proceeding and that his testimony could be prejudicial to the interests of the estate beneficiaries; hence, disqualification was warranted.

The Holding

The crux of Surrogate Holzman’s decision was not, however, the test of necessity and prejudice under the advocate-witness rule; rather, it was whether the public policy allowing litigants to represent themselves should apply to fiduciaries. In Walsh, the attorney was representing himself as executor. Surrogate Holzman acknowledged the general public policy reasons for granting parties the right to self-representation and stated that ” . . . where attorneys are themselves parties to litigation, . . . the right of litigants to represent themselves usually trumps disqualification under the advocate-witness rule with the result that the attorney-litigants may represent themselves pro se, . . . notwithstanding that they will testify at the trial.” However, Surrogate Holzman emphasized that the right of attorneys to represent themselves at trials where they will testify is a narrow exception to the strong public policy requiring disqualification under the advocate-witness rule.

How are the competing policies reconciled? The answer lies in a “real party in interest” analysis. The common notion of a pro se litigant is an individual representing his or her own interests and the “rationale for the right to self-representation is that litigants have a right to advocate on their own behalf where their own freedom or property interests are at stake.” Id. Accordingly, attorneys, just by reason of being attorneys, won’t be denied the same rights as nonattorneys to self-representation, so long as they are advocating their individual interests. Generally, however, a fiduciary of an estate is not acting in an individual capacity, but in a representative capacity and the interests at stake are those of the estate beneficiaries. Surrogate Holzman looked to a number of statutory provisions for support of his holding that an estate fiduciary is merely a nominal party and the real parties in interest are the estate beneficiaries.1 For example, fiduciaries are not liable on contracts entered into in their fiduciary capacity unless they fail to reveal they are acting in their fiduciary capacity (EPTL §11-4.7(a)); estates cannot sue or be sued in their own name and must instead appear through their fiduciaries (EPTL §11-4.1); wrongful death actions may only be brought by the fiduciary (EPTL §5-4.1) but the damages recovered are solely for the benefit of the decedent’s distributees (EPTL §5-4.4(a)).

Thus, Surrogate Holzman, “weighing the public policy reasons for disqualification of an attorney under the advocate-witness rule against the public policy reasons for granting parties the right to self-representation,” ruled that “the former must prevail where the attorney is not a party, individually, but instead, is a party as the personal representative of an estate.” Had the executor in the Walsh case been a nonattorney, the court would still have disallowed self-representation, not under the advocate-witness rule, but under the proscription against practicing law without a license. Had the attorney-executor in Walsh been the sole beneficiary of the estate, it is probable that the court would have ruled otherwise,2 since the fiduciary’s individual interests are at stake.

Conclusion

Attorneys who find themselves acting as estate fiduciaries should be mindful of the advocate-witness rule and, if litigation ensues, must assess whose interests are at stake before they (or their firms) continue representation.

FOOTNOTES

  1. Surrogate Holzman found the analysis in Heath v. Teich, 2007 WL 1501727 (Ohio Ct. of App.) compelling. That case involved an administrator of an estate seeking to represent herself individually and her two minor children, who were all the persons entitled to share in any recovery of a wrongful death action brought by the administrator. The Ohio Court of Appeals, determining that the real parties in interest are the estate beneficiaries, prohibited the administrator (a nonattorney) from representing the interests of her children.
  2. See Heath v. Teich, supra; but see, Gasoline Expwy, Inc. v. Sun Oil Co. of Pennsylvania, 64 A.D.2d 647 (2d Dept. 1978), where the Appellate Division disqualified an attorney in her representation of a closed corporation under the advocate-witness rule, notwithstanding that the attorney was the sole shareholder of the closed corporation.

See Source: https://www.blankrome.com/index.cfm?contentID=37&itemID=1561

Posted in Family Court Reform, Probate, Social justice | Leave a comment

Connecticut: AudioGate — CT Judicial Branch has even fought against providing these services to individuals making an administrative request for audio through the Americans with Disabilities Act “…..and, ultimately reduce the time it takes to produce a transcript….”

 

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Dan Lynch appears as guest on ‘Summary Judgment’ with hosts Atty. Rachel M. Baird (left) and Ed Peruta

It seems that the Branch made their pitch, convinced lawmakers to vote for increased fees based on a promised delivery of a tangible service with real benefits to citizens of Connecticut, but then they failed to live up to their end of the bargain. Not only have four years gone by without audio recordings being made available, but in certain instances the Branch has even fought against providing these services to individuals making an administrative request for audio through the Americans with Disabilities Act.

“Finally, legislation passed this session increased certain court fees to provide funds for the Branch’s technology revolving fund. Having a steady reliable funding source for technology will enable us to plan and implement many technology projects, most notably, the expansion of digital audio recording to all of our courtrooms. This will enable the Branch to make audio recordings of proceedings available to the bar and public on the day they are recorded and, ultimately reduce the time it takes to produce a transcript and accelerate the appeal process.”.

Among the more interesting topics discussed, Lynch notes how the Judicial Branch petitioned the Connecticut Legislature during the 2012 Legislative Session for support of legislation which would enable them to increase certain court filing fees. The bill in question was Raised H.B. No. 5388, titled somewhat cleverly, “AN ACT CONCERNING COURT FEES AND THE DELIVERY OF LEGAL SERVICES TO THE POOR.” Now, seriously, especially in an election year, who wants to be known for voting NO on such a magnanimous piece of legislation

In the final hours of this year’s legislative session, the Connecticut General Assembly granted a rare reversal enabling Lynch to recover damages — he is seeking in excess of $55 million in damages in his federal complaint which will now be amended to include additional defendants and claims — resulting from his 2009 divorce and related actions in Bridgeport.

See the full Story at: http://ctsupremecourt.blogspot.com/2016_05_01_archive.html

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Connecticut: Trumbull man to sue state for attorney, judicial misconduct, he is seeking in excess of $55 million in damages

daniel-lynch

Divorce has cost Trumbull resident Dan Lynch a lot more than a life partner — it has cost him his business, his physical and mental health, and his faith in the judicial system.

Perhaps most important, the legal situation cost him time — almost a decade’s worth of it, more than 15 times the average period for such a matter.

Lynch, who has been seeking an opportunity to sue, among others, Connecticut’s Statewide Grievance Committee and the Judiciary Department over alleged attorney and judicial misconduct for the last seven years, received some long-awaited good news from the House of Representatives and Connecticut State Senate Tuesday, May 3.

In the final hours of this year’s legislative session, the Connecticut General Assembly granted a rare reversal enabling Lynch to recover damages — he is seeking in excess of $55 million in damages in his federal complaint which will now be amended to include additional defendants and claims — resulting from his 2009 divorce and related actions in Bridgeport.

To the extent allowed by law, he noted certain claims allow for treble damages, so the damage awards could be substantially higher.

“In the end, it’s a very emotional victory,” Lynch told The Times Friday. “I don’t get back my clean record, I don’t get back all the time I’ve spent researching and responding to these cases, but now I can continue my pursuit for justice and make sure that this doesn’t happen to anybody else.”

See the Full Story at: http://www.trumbulltimes.com/2016/05/11/trumbull-man-to-sue-state-for-attorney-judicial-misconduct/

Also See: CONNECTICUT COMMITTEE ON COURT RECORDING MONITORS 2010

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Connecticut: Stamford attorney accused of stealing from client’s estate. “He also did not comply with several probate orders…”

Morris Glucksman, 68, surrenders his law license on Tuesday amid accusations he stole nearly $60,000 from an estate of a woman and her son.

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Photo: Stamford Police Department / Contributed Photo /

Stamford Advocate Contributed Morris Glucksman, 68, surrenders his law license on Tuesday amid accusations he stole nearly $60,000 from an estate of a woman and her son. Photo: Stamford Police Department / Contributed Photo   Morris Glucksman, 68, surrenders his law license on Tuesday amid accusations he stole nearly $60,000 from an estate of a woman and her son.

A city attorney with more than 40 years of experience surrendered his law license this week amid accusations he stole nearly $60,000 from the estates of a woman and her son. Morris Glucksman, 68, ended his 42-year law career Tuesday when he voluntarily resigned his license to practice law in the state and agreed to never ask for its reinstatement.

Judge Douglas Mintz accepted the civil and real estate attorney’s resignation. Glucksman’s attorney, John Robert Gulash, declined comment after the brief hearing in state Superior Court in Stamford.

Glucksman was back in court Wednesday when he pleaded not guilty to first-degree larceny and second-degree forgery. Gulash said it wasn’t appropriate to comment on the case since he was still gathering information from state prosecutors.

The Office of the Chief Disciplinary Counsel, which pursues grievance complaints against attorneys on behalf of its clients, pushed for Glucksman to surrender his license after determining he posed a “threat of irreparable harm to current and prospective clients.”

Karyl Carrasquilla, who heads the council, said she was saddened by the accusations against Glucksman. “It is always a sad day when a lawyer with a 40-plus-year practice is faced with allegations like these and tenders his law license,” Carrasquilla said. She said Glucksman was not required to surrender his license, but said it is common for attorneys to forfeit their license when facing these types of charges.

Carrasquilla said New Canaan attorney Ann Brickley volunteered as a trustee to help sort out Glucksman’s clients and protect their interests. “It is a huge service they do for the Judicial Branch and we completely appreciate everyone who has worked as a trustee in any of our disciplinary matters,” Carrasquilla said.

The Statewide Grievance Committee will soon audit Glucksman’s trustee account. According to documents contained in his court files, Glucksman stole about $58,000 from the estates of a woman and her son soon after they died three months apart about five years ago. He also did not comply with several probate orders and even submitted a forged trust document into evidence in probate court, the documents state.

The family reported Glucksman’s handling of the estate to police in November. The family also accused Glucksman of failing to winterize a house belonging to the estate, causing a water main to burst and reducing the property’s value by $72,000 as a result of his negligence, according to court documents. A day after the woman died in October 2010, Glucksman withdrew $25,000 from her account but didn’t file her will in probate court for nearly three years, court documents state.

A month after her death, Glucksman drafted three checks — two purportedly signed by the woman — written out to himself, court documents state. Three months later, Glucksman took $15,000 from a money market account belonging to the woman’s son on the day he died, according to court documents. Glucksman deposited the money into his own account and continued to cash checks from the man’s account over the following year, the documents state.

Police say Glucksman also sold $33,000 worth of sports memorabilia from the estates, but never deposited the money into accounts belonging to the estates. Glucksman is due back in court June 20

To read the full The Stamford Advocate story, and read the comments click here.

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Connecticut: Former Attorney Avoids Prison “I told the probate court something was wrong and the court ignored me.”

Former Attorney Avoids Prison in Larceny Case Involving Disabled Client

National Association to Stop Guardian Abuse

John Fritz told a judge recently that his former attorney’s theft of his money left him severely depressed, nervous, angry and distrustful of lawyers, the courts and people in general.

Fritz, a disabled Wethersfield resident, had a chance to address Judge Joan K. Alexander before she sentenced his long-time former attorney and conservator, Michael Schless, at Superior Court in New Britain on March 18.

Newington police last year charged Schless with stealing about $48,000 from Fritz. Schless, 78, entered a no contest plea to first-degree larceny in February.

“Michael Schless stabbed me in the back and he only looked out for himself,” Fritz said.

Fritz told the judge he has had cerebral palsy his entire life, and he had received $120,000 from his late mother, money which Schless was supposed to help him manage.

“I think he was stealing money for a long time,” Fritz said. “In the past I trusted people, and trusted lawyers and the courts. Now, I don’t trust people anymore. I told the probate court something was wrong and the court ignored me.”

According to Fritz, what happened made him severely depressed. He stopped eating properly and lost over 80 pounds. For years, he had a home health aide to help him brush his teeth, but Schless claimed he couldn’t afford an aide and cancelled that service, Fritz said. He told the judge his lower teeth rotted and had to be pulled out. “It was awful for me,” Fritz said.

Fritz said Schless wasn’t paying his bills or rent properly, subjecting him to fines and penalties. When he complained, he said probate court officials didn’t do anything about it……..

Full Article & Source:
Former Attorney Avoids Prison in Larceny Case Involving Disabled Client

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Connecticut Citizens Need to Learn Probate Reform From Colorado Reform Efforts

The Har Company, L.L.C., is a private consulting firm dedicated to empowering families in probate courts.

Colorado and the Pro Se Litigant-References verified per Code, Case, and Constitution, Article 2:

  • Constitution Article 2 section 6 “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character, and right and justice should be admistered without sale, denial or delay.”
  • Colorado Supreme Court in Tassian v. People, 731 P.2d 672 Jan. 1987, “The chief judge’s directive at issue here clearly discriminates against pro se litigants solely on the basis of their pro se status and in that respect, lacks any rational basis in fact and thus violates equal protection of the laws.”
  • Colorado Code of Judicial Conduct, Canon III(a)(7), “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law.”

The National Association for Probate Reform and Advocacy

“NAPRA” is dedicated to ending crimes against humanity in America’s probate courts including: fraud, post traumatic stress and pain from legal abuse, intimidation, bullying, harassment, failure to provide families with accountings and  financial exploitation through public awareness campaigns.

NAPRA’s mission  encourages our elected officials to ratify “The International Covenant on Economic, Social and Cultural Rights.”*

NAPRA is a non-partisan educational organization created to promote transparency, accountability, and awareness  in America’s Probate Courts. At NAPRA we welcome all organizations dedicated to this common goal.  NAPRA recognizes and commends the minority of lawyers and judges who act ethically and follow the “Black Letter rules of law” in Probate Court proceedings. * Link available from the United Nations.

Legislation must be addressed that allows for the Federal Rules of Evidence to “apply” in Probate Court proceedings

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  • Laws must be adopted so all individuals in probate courts have mandatory due process, presentation of evidence, and an opportunity to be heard before a Court can take an individual’s “life, liberty, or property.”
  • Any failure by a court “judge” to deny an individual’s due process rights must immediately be put on mandatory leave.
  • The inalienable rights of American citizens are not bestowed by any  contract but are just that – “inalienale.”
  • Mandatory sanctions must be implemented so that the perpetrators cannot continue to rob Americans of their property, liberty, or life absent due process of law.

Judicial Immunity and Due Process From the CATO  Institute:

“A judge thus remains unquestionably immune as long as he does not take actions that intentionally and plainly prevent further review. The duty imposed on a state-court judge, then, is only to recognize that his own decisions may sometimes be in error and to ensure that orders affecting important constitutional rights can be reviewed in another court.” Go to information and resources for link to article.

To remedy this problem, Congress must pass legislation limiting immunity for due process violations such as notice, hearing, and the opportunity to appeal. Probate courts must have a higher sanctions for violators before allowing the taking of property, life and liberty as it applies to guardianships, conservatorships, and child protection services that often severely violate the individual’s inalienable rights protected by the Bill of Rights.

Public Hearing Colorado Supreme Court-Athena Roe, J.D.

Available on OMPCO Judicial You Tube

What is Probate?

The “GAME”  of Probate or “estate administration” can come in many forms. Guardianship schemes, drugging the elderly, defrauding the estate by making false claims, and by financially exploiting the vulnerable. Probate lawyers always practice in areas of “real estate’ and land grabbing under the guise of “wealth management” –in other words your wealth.

If your parent, husband, wife, brother, sister,  or other family member’s died without a “Will” or if  they did not have a beneficiary “Deed” to the home,  payment on death and transfer on death on bank acounts, retirement accounts, etc.  the State Public Administrator will come in and take possessin of the home, bank accounts, and all other assets.  As a family member or beneficiary, you will lose control over every single asset your family worked to build within weeks.

The process is painful and often fraught with unscrupulous lawyers and judges who “rubber stamp” orders without due process of law. A Will does not protect assets.  Worse yet, probate lawyers will liquidate your family’s property for pennies on the dollar leaving you as a beneficiary a mere pittence.  Probate court abuse does not just affect the elderly. Families in divorce court may experience unique relationships with guardianships. NAPRA recognizes the lawyers who act ethically and genuinely try to help their clients. There are those who are not as noble and act adverse to their client’s case.

One way the corruption maintains itself is by silencing family members and beneficiaries “the  whistleblowers” who exposes the illegal acts, fraud,  and abuse. Your own lawyers my belittle you because of the vulnerability after the loss of a loved one and financially exploit widows, widowers,  or family members who speaks out against the rampant abuse. The ABA Rule for Lawyers and Federal Codes that address usury interest, exposure of fraud and felonies are as follows:

  •  Lawyer Rule 8.3 states, “lawyers must report criminal activity.”
  • 18 U.S.C.A. 4 makes it a crime NOT to report felonies.
  • Check  your state fraud laws at: www.clla.org/documents/Usury%20Laws%20by%state.doc.

Fraud Scams

  • Often lawyers concoct schemes to defraud the estate. Investment companies work with lawyers and banks to purchase homes and property for pennies on the dollar. For example, your family home may be worth $350,000.00. If there is no beneficiary deed, the probate laweyer can set up a scheme to liquidate your home to an investment company for $75,000.00.
  • Another scheme is the fake future interet scam, if real estate companies assert “the estate owes future interest for CAM charges”–interest rates over 45% is considered a class 6 felony.

The Har Company, L.L.C., is a separate private consulting firm. At the Har Company, L.L.C., you will learn how to spot fraud, fee churning, and fight against unfettered liquidation of your family’s assets. We will have pro se support groups for families who have become inflicted with PTSD due to legal abuse. Dr. Huffer of Equal Access is an expert on the topic. The Har Company, L.L.C., does not provide legal advice or any information or advice inherant with your case. The Har Company, L.L.C.,  can make recommendations or referrals for counsel and support groups –  should the need arise. We work with Equal Access Advocates and some attorneys and counselors.

The National Association for Probate Reform and Advocacy supports and recognizes the following organizations all committed to making America a better place for our nation’s elderly, disabled, troops, widows, widowers, children and families affected by probate administration and reform efforts:

Network and Collaborate

The Americans with Disability Act, (ADAAA),

  • Dr. Karin Huffer, Equal Access,
  • The National Medical Malpractice Advocacy Association
  • Americans Against Abusive Probate Guardianship,
  • Kasem Cares,
  • Stop Guardian Abuse Nevada,
  • Families Against Court Embezzlement and Unethical Standards, (F.A.C.E.U.S.),
  • The National Association for the Advancement of Colored People (NAACP),
  • The Estate of Denial, Lou Ann Anderson,
  • The Examiner, Lou Ann Anderson,
  • Westport Wow,
  • Marti Oakley of PPJ Gazette and T.S. Radio,
  • Senators and legislators,
  • The Judicial Integrity Project, Colorado,
  • The Honest Judge Amendment,
  • Probate Sharks,
  • Whistleblowers Summit,
  • The Law Project, NJCDLP,
  • G.R.A.D.E.,
  • Judicial-corruption.blogspot
  • and countless families and probate reform groups!

We as citizens of America must continue to demand the “gold standard”  that made America great – The First Amendment to the U.S. Constitution.

See Website and Source of Information: http://www.harjustice.org/

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“deducted $7 million in legal fees.” – Local case could change Connecticut’s attorney disciplinary system – a jury awarded $58.6 million — the largest medical malpractice award in Connecticut history — to Danny

A Wilton 12-year-old named Danny finds himself in the middle of an attorney misconduct controversy that has the potential to change Connecticut’s attorney disciplinary system.

The case involves millions of dollars and “some of the best-known and well-connected attorneys in Connecticut,” according to a press release from Connecticut-based legal legal_malpracticemalpractice attorney Howard Altschuler.

“Danny D’Attilo appears to be the victim of a system of attorney self-regulation that is turning a blind eye to allegations of unethical conduct of Danny’s former attorneys” — Day Pitney and Koskoff Koskoff & Bieder — “who are being treated as if they are too big to discipline,” the press release further states.

In May 2011, a jury awarded $58.6 million — the largest medical malpractice award in Connecticut history — to Danny and his parents, Cathy and Domenic D’Attilo, as a result of a doctor’s negligence which left Danny “severely disabled at birth and cut his life expectancy more than half,” according to the press release.

The medical malpractice parties settled in January 2012 for $25 million in order to avoid an appeal.

Altschuler told The Bulletin he was approached by Danny’s parents in May 2014 because “among other things, they were afraid their prior attorneys had not protected Danny’s future” and “they wanted to make sure Danny was never institutionalized and would always live at home.”

See Full Story at: http://www.wiltonbulletin.com/61699/local-case-could-change-connecticuts-attorney-disciplinary-system/

Also See 2011 Story: http://www.huffingtonpost.com/2011/05/26/malpractice-record_n_867439.html

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Connecticut Probate: Partners Report Lawyer to Conn. Officials, Allege $3 Million Theft From Client’s Estate

Partners Report Lawyer to Conn. Overall, it alleges Barry as fiduciary issued his firm fees in excess of $3 million in connection with the representation of Wilens.

State attorney disciplinary officials are seeking an interim suspension for a Southbury attorney, claiming he collected exorbitant fees of more than $3 million while acting as executor and trustee for a now deceased client’s estate.

The application for order of interim suspension was filed against attorney Robert J. Barry on Nov. 3 in Superior Court in Waterbury. In the application, Assistant Chief Disciplinary Counsel Desi Imetovski asserts Barry “poses a substantial threat of irreparable harm to his current and prospective clients.” The application notes he has about 70 pending cases in the seven-town probate court district that includes Southbury. “Respondent continues to represent numerous individuals in trusts and estates with access to untold monies,” the application states.

The Office of Chief Disciplinary Counsel also asked the court to appoint a trustee to protect the interests of Barry’s clients. The court had not scheduled a hearing or taken any action on the application as of Nov. 4. The disciplinary counsel’s office declined to comment on the case beyond what is outlined in court documents.

Barry, of the law firm Sturges & Mathes on Heritage Road in Southbury, was admitted to the bar in 1967, according to the state Judicial Branch, which indicates he has no public record of discipline. A message left for Barry seeking comment was not immediately returned. It was unclear whether he has hired another lawyer to represent him in the matter.

Attorney Kevin Thornton, who works at the same firm as Barry, said he learned about the $3 million fees after hearing staff in the office express concerns about exorbitant fees being taken in a client’s case. After checking the firm’s financial records, Thornton said he and another attorney at the firm, Lisa Wnuck, met with the disciplinary counsel’s staff to discuss what they had discovered.

The firm’s website lists the three attorneys — Barry, Thornton and Wnuck. Barry’s areas of practice include estate administration, estate planning and real estate. Thornton said the extent of the financial situation is still being evaluated. He said after the situation was discovered, the partners argued and Barry tried to kick Thornton out of the building.

“I think this is the tip of the iceberg,” Thornton said. “No one else [other than Barry] was looking at the [financial] books until very recently. Of course, I am concerned about the firm’s reputation. It was founded in 1908 and its reputation has been stellar.”

According to court documents, in December 1998 Barry began representing Catherine Wilens. He prepared her will testament and set up a revocable trust agreement.

From 2010 through February 2014, Barry held a power of attorney for Wilens. During this time, he wrote checks payable to his firm, Sturges & Mathes, in excess of $743,000, the disciplinary counsel’s office claims. Barry then became the estate trustee prior to Wilens’ death, and as such, he wrote trust checks payable to his firm in excess of $900,000 between 2010 and 2014.

Wilens, who had been a Southbury resident, died on March 1, 2014. Barry was also the executor of her estate, which was valued at $9 million at the time of her death, according to the application for temporary suspension. Under the terms of the trust, two individuals, Madison and Megan Mahoney, were to receive $100,000 each, with the balance of the assets to go to the Cornell University’s medical school, to be held as “The Catherine Williams Wilens Memorial Fund,” documents show.

But from March 2014 through November 2015, Barry executed checks payable to his firm in the amount of about $1.4 million, the disciplinary counsel’s office claims. Overall, it alleges Barry as fiduciary issued his firm fees in excess of $3 million in connection with the representation of Wilens.

In May 2015, Barry filed a federal estate tax return, listing the value of the estate at only slightly over $8 million, omitting almost $1 million in assets, according to disciplinary counsel’s office. 

Full Article & Source: TUESDAY, NOVEMBER 10, 2015
http://nasga-stopguardianabuse.blogspot.com/2015/11/partners-report-lawyer-to-conn.html
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Connecticut is now the most expensive place to die: Probate fees on settling estates — a legal process that determines the authenticity of wills and the administering of a deceased’s assets — have risen, resulting in invoices that could top $100,000 or even $1 million.

https://www.youtube.com/channel/UCEUvtxotvobmNahE0rfxXrQ

RED FLAGS TO FAMILIES IN PROBATE– YOU MUST UNDERSTAND THE LAWYER and JUDGE “SCHEMES” or the “enterprise of probate”

HAR Justice suggests that beneficiaries pay attention to the red flags that attorneys use to unnecessarily liquidate estate assets and force probate properties into foreclosure

1) the “family allowance” scam, here attorneys pretend to be the good guy by telling the beneficiary that they can get some crappy allowance that in most cases is a “mere pittance”; 

2) failing to contact banks and mortgage companies so that your home and property goes into foreclosure;  

3) not communicating with beneficiaries;  

4) intimidation;  

5) all court appointees have all financial control over the estate; 

6) lawyers allow bogus “liens” (lens pendens) on your home or other real estate to force the beneficiary to refinance or sell as part of the scheme to defraud the estate;    

7) reroute the beneficiaries and decedent’s mail to the lawyers (public administrator, public trustee, or conservator’s P.O. Box;  

8) keep facts and evidence from the judge to perpetuate the scheme–keep the truth out of court;   

9) lawyers start to withdraw from your case after pillaging and screwing your case up, then they talk in their “locker room” arenas to discredit the beneficiary or client; 

10) denial of your 14th Amendment rights to an evidentiary hearing on the facts, evidence, and merits of your case and probate matter– this denial of your rights “violates” your Constitutional rights to due process of law;  

11) stops communicating with beneficiaries and family members;  

12) uses the phone as a primary way to churn fees. At $275- $500 per hour, this is a sure fire way for lawyers to eat up your assets and one of the most common “tricks in the book” this also keeps beneficiaries and clients from having solid evidence to use against the lawyer in court; 

13) the family “trust” home eviction. Trustees try to “evict” the beneficiary from the home or property of the decedent in order to liquidate the property to “the enterprise of real estate investors”– this is why you must have a beneficiary deed so the property transfers  out of probate– trusts are a scheme…; 

14) lawyers as “asset management companies”–almost all probate lawyers hold them selves out as asset management companies–really this is how lawyers, banks, realtor associations know when your property is up for grabs, also the primary way lawyers take property and homes from beneficiaries as “investors.” Do your research, lawyers have the “first dibs” on your property and a slew of lawyers have purchased and are living in probate/foreclosed properties purchased for pennies on the dollar. Probate is the modern day “mob” industry and should be regulated under anti-racketeering statutes.

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https://www.youtube.com/channel/UCEUvtxotvobmNahE0rfxXrQ

Fortune

http://fortune.com/2015/07/15/death-expensive-place/

Connecticut has become the most expensive place to die in the U.S.

Probate fees on settling estates — a legal process that determines the authenticity of wills and the administering of a deceased’s assets — have risen, resulting in invoices that could top $100,000 or even $1 million.

“It’s outrageous,” Westport attorney Amy Day told CNBC. “We always had a cap on probate fees of $12,500. Now it’s not going to be unusual for people to pay upward of $50,000.”

One of the big reasons for the shocking increase in fees has been a budget cut at the state legislature that has strangled funding to the probate court system. A previous $12,500 cap on court fees has been eliminated, and fees on estates worth more than $2 million have doubled to 0.5% of the estate’s value.

Lawyers and judges have since remarked on the debilitating result of this decision. Judge Paul Knierim, Connecticut’s probate court administrator, said if the new fees were applied last year, two estates worth more than $200 million apiece would have paid more than $1 million in probate costs and about a dozen worth over $20 million would have paid more than $100,000. Knierim and some state lawmakers are planning to campaign for a reversion to the previous system next year.

“I think the fundamental problem is that the change in decedents’ estate fees imposes the burden of running the probate court system on a very small portion of the population,” Knierim said to CNBC.

State Governor Dannel Malloy put forward a state budgetlast month that included cuts in education, health care, and social services.

http://fortune.com/2015/07/15/death-expensive-place/

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Connecticut: Woodbury attorney accused of stealing $1.8 million from woman’s estate

National Association to Stop Guardian Abuse

A Woodbury man is facing federal theft charges after officials say he stole $1.8 million, most of which was slated for charity, from the estate of an Oxford woman

Peter M. Clark, 57, was arrested Thursday, according to a release from Deirdre M. Daly, United States Attorney for the District of Connecticut, and charged with stealing from the estate of Miriam S. Strong, who died July 2, 2010.

At the time of her death, Strong had a will, which left money, property and other items to a list of individuals, the town of Oxford, the state of Connecticut and several religious and other charitable entities, according to the release. The will also called for the creation of a scholarship fund for college-bound students from Oxford.

Clark drafted the will as Strong’s attorney and served as a witness to Strong’s execution of the will, officials said. The will named Clark and another individual as co-executors. The investigation has revealed that, during the course of the administration of the will, Clark took at least $1.8 million from Strong’s estate for his own use.

Clark transferred some of the money to other accounts, used some to buy himself an all-terrain vehicle and gave some money to his wife, according to court documents. The estate account he had taken the money from was left with a meager balance of $13.40 when he had to make a report to the probate court, officials said. Court documents show that some of the beneficiaries of the will became suspicious when they had not received the money they had been told they would get and contacted the probate court, which in turn removed Clark as an executor while the investigation was under way.

The complaint charges Clark with one count of mail fraud, which carries a maximum term of imprisonment of 20 years. Clark was arrested Thursday morning at his home in Woodbury, officials said. He appeared before U.S. Magistrate Judge Sarah A.L. Merriam in New Haven and will be released after he posts a $500,000 bond that will be co-signed by family members

Daly stressed that a complaint is only a charge and is not evidence of guilt. Charges are only allegations and a defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt. This matter is being investigated by the Federal Bureau of Investigation and the Connecticut State Police – Western District Major Crime Squad. The case is being prosecuted by Assistant U.S. Attorney Sarah P. Karwan.

Full Article & Source:
http://nasga-stopguardianabuse.blogspot.com/search/label/Connecticut

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