Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

Category Archives: Ethics & Malpractice Claims

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3d DCA: In a Will contest, will a decedent’s confidential communications with her estate planning attorney remain confidential?

Posted in Ethics & Malpractice Claims
Vasallo v. Bean, — So.3d —-, 2016 WL 6249157 (Fla. 3d DCA October 26, 2016) The promise of confidentiality is at the heart of the lawyer-client relationship. Confidentiality is so important, it’s guaranteed under both our ethics rules (Rule 4-1.6) and our evidence code (F.S. 90.502). This basic concept gets muddied in the trusts and… Continue Reading

S.D.Fla: Does the “fiduciary exception” to the attorney-client privilege still matter in Florida?

Posted in Ethics & Malpractice Claims
Bivins v. Rogers, — F.Supp.3d —-, 2016 WL 4702682 (S.D.Fla. Sept. 07, 2016) We all know that when attorneys represent fiduciaries of any kind (be it guardians, personal representatives or trustees) much of the work we do is intended to benefit not just our clients, but the third parties they’re charged with serving (for example,… Continue Reading

4th DCA: Can a ward sue the attorney for his former court-appointed guardian for malpractice?

Posted in Contested Guardianship Proceedings, Ethics & Malpractice Claims
Saadeh v. Connors, — So.3d —-, 2015 WL 3875682 (Fla. 4th DCA June 24, 2015)  The general trend in Florida (especially in the trusts and estates context) is that a third-party beneficiary of your legal services can sue you for malpractice — and it doesn’t matter that the third party was never your client and had zero privity of… Continue Reading

Bkrtcy. M.D.Fla.: Can winning a “defalcation” ruling in a bankruptcy proceeding against your former probate lawyer end up immunizing his insurance carrier from liability?

Posted in Compensation Disputes, Ethics & Malpractice Claims, Practice & Procedure
In re West, Slip Copy, 2015 WL 2445315 (Bkrtcy. M.D.Fla., May 20, 2015) Complex estate litigation usually doesn’t get resolved in a single winner-take-all trial. These cases usually get played out in multiple “mini” trials (sometimes before the same judge, sometimes not) turning on an evolving set of contingencies that no one could have predicted in… Continue Reading

11th Cir: Does a trustee’s lawyer owe fiduciary duties to the trust’s beneficiaries?

Posted in Ethics & Malpractice Claims
Bain v. Mcintosh, — Fed.Appx. —-, 2015 WL 859481 (11th Cir. March 02, 2015)  The nature and extent of the fiduciary duties — if any — owed by the lawyer for a trustee or personal representative to the beneficiaries of the trust or estate has always been a hot topic. The “traditional” view in most jurisdictions… Continue Reading

Lessons from “Clarity on Capacity”: A UK-law perspective on the unique ethical challenges faced by estate planners representing clients with diminished capacity

Posted in Ethics & Malpractice Claims, Trust and Estates Litigation In the News
Florida ethics Rule 4-1.14 and its ABA model-rules counterpart, Rule 1.14, address the unique ethical challenges faced by attorneys representing clients with diminished capacity. To say this is a “thorny” situation is putting it mildly, especially for estate planners, which means any concrete help we can get navigating these dangerous waters is incredibly valuable. One way… Continue Reading

M.D.Fla.: Can you be found guilty of “defalcation” for billing a client in accordance with Florida’s statutory fee schedule?

Posted in Compensation Disputes, Ethics & Malpractice Claims
West v. Chrisman, Slip Copy, 2014 WL 4683182 (M.D.Fla. September 19, 2014) If there’s anyone out there that still believes F.S. 733.6171 (the probate code’s attorney’s fee statute) or its trust-code equivalent (F.S. 736.1007) establishes a fee that’s “set” or otherwise “blessed” by Florida law, this case is going to be a rude awakening. Not only did… Continue Reading

1st DCA: In case of first impression Appellate Court rules successor PR has standing to sue prior PR’s attorney for malpractice

Posted in Ethics & Malpractice Claims, Practice & Procedure
Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) There’s nothing like the threat of a malpractice suit to focus the mind. And in the trusts-and-estates context this risk is exponentially greater for all sorts of reasons, including the fact that you can get sued by lots of people… Continue Reading

3d DCA: Does judge’s independent investigation of facts in guardianship proceeding = disqualification?

Posted in Contested Guardianship Proceedings, Ethics & Malpractice Claims
In re Guardianship of O.A.M., — So.3d —-, 2013 WL 5927613 (Fla. 3d DCA November 06, 2013) Guardianship proceedings involving minors can be especially challenging for all involved . . . including your judge. Here’s the main problem: unlike most civil cases, in guardianship proceedings the judge plays a dual role: he or she serves… Continue Reading

Effective October 1, 2013, if a lawyer improperly writes himself into his client’s will, the bequest is automatically void as a matter of law under new F.S. 732.806

Posted in Ethics & Malpractice Claims, Probate & Guardianship Statutes
Effective October 1, 2013, we now have F.S. 732.806, a new statute effectively codifying existing ethics Rule 4-1.8(c) as part of our probate code, and making a violation of this ethics rule an automatic basis for voiding any part of a will, trust or other written instrument making an improper client gift to the drafting… Continue Reading

Fla. S.Ct: Lawyer + Dishonesty as PR and Trustee = Disbarment

Posted in Ethics & Malpractice Claims
The Florida Bar v. Swann, — So.3d —-, 2013 WL 3064813 (Fla. June 20, 2013) Dishonesty. It’s an ugly charge that’s implicit (and sometimes explicit) in practically every case involving fiduciary misconduct by a personal representative (PR) or trustee. For most defendants the “what’s-your-worst-day-in-court” calculus for this kind of case is usually a dollars and… Continue Reading

4th & 2d DCA on “in camera” review of privileged documents in probate litigation

Posted in Ethics & Malpractice Claims
If you’re an estate planner, it’s only a matter of time until someone asks you to turn over a deceased client’s estate planning file. Don’t automatically say “yes,” you’d be surprised (horrified!) by the ethical traps lurking in this seemingly simple request (if you want to make sure you don’t get sued for getting this wrong,… Continue Reading

Estate planners beware: to err is human, but the cover up can land you in jail

Posted in Ethics & Malpractice Claims, Tax Cases
The competitive pressures and technical complexities of a sophisticated estate planning practice can be daunting. Not surprisingly, estate planning is one of the most common areas for legal malpractice claims. For me, what really matters is not whether you’ve ever made a mistake (no one’s perfect), it’s what you do after you realize you’ve made a… Continue Reading

Fla. SCT: lawyer + financial planner + no written conflict waiver = disbarment

Posted in Ethics & Malpractice Claims
The Florida Bar v. Doherty, — So.3d —-, 2012 WL 1033478 (Fla. March 29, 2012) Plenty of estate planning lawyers also advertise themselves as financial planners. There’s nothing inherently wrong with this (hey, some of my best friends are financial planners!), and I’m sure lots of clients appreciate a "one-stop-shopping" approach to their estate planning (which is… Continue Reading

5th DCA: Can estate beneficiaries sue the guardian’s lawyers for estate planning malpractice?

Posted in Ethics & Malpractice Claims
Hodge v. Cichon, — So.3d —-, 2012 WL 315846 (Fla. 5th DCA February 03, 2012) Under Florida law, the three elements of a legal malpractice action are generally described as follows: the existence of an attorney/client relationship between the plaintiff and the attorney (i.e., “privity of contract“); the attorney’s neglect of a reasonable duty; and that such… Continue Reading

4th DCA: If a lawyer improperly writes himself into his client’s will, is the bequest automatically void as a matter of law?

Posted in Ethics & Malpractice Claims
Agee v. Brown, — So.3d —-, 2011 WL 5554833 (Fla. 4th DCA Nov 16, 2011) At the heart of this case is Florida Bar ethics Rule 4-1.8(c), which prohibits Florida lawyers from soliciting “substantial” gifts from their clients (“lunch on me” is OK) or drafting wills, trusts, deeds, etc. for their clients effectuating any such… Continue Reading

American Bar Association & American Psychological Association Joint Project: Assessment of Older Adults with Diminished Capacity: Handbook for Lawyers

Posted in Ethics & Malpractice Claims, Musings on the Practice of Law
A central issue driving almost every will or trust contest is whether the person signing the document knew what he was doing. In other words, did he have testamentary capacity? Any probate judge who has been on the job for more than 6 months will know the law governing these cases cold. What they need from us are the facts.… Continue Reading

Florida Supreme Court sanctions lawyers engaged in toxic e-mail feud

Posted in Ethics & Malpractice Claims, Musings on the Practice of Law
The histrionics we see on television are almost never allowed in a real courtroom. If something truly appalling is going to happen, it’s going to happen outside of the courtroom. Prime example: toxic e-mail feuds. Sooner or later we all run into opposing counsel who try to provoke us into some kind of angry e-mail… Continue Reading

New ethics advisory opinion 10-3: when should lawyers voluntarily disclose client information to personal representatives and heirs

Posted in Ethics & Malpractice Claims
As a practicing lawyer, one of the best risk-management tools available to you are the ethics rules. Not because you need someone to tell you it’s a bad idea to lie, steal or cheat; but because you need someone to point out the pitfalls that are NOT self evident. As former Secretary of Defense Donald… Continue Reading

2d DCA: Ethics violation = undue influence = attorney and paralegal forfeit $7.2 million bequest

Posted in Dependent Relative Revocation Doctrine, Ethics & Malpractice Claims
Carey v. Rocke, 18 So.3d 1266 (Fla. 2d DCA October 23, 2009) According to newspaper accounts this will contest revolved around allegations of undue influence and related attorney ethics violations. The decedent’s attorney wrote himself and his paralegal into a client’s will for what ultimately morphed into a $7.2 million bequest between the two of them,… Continue Reading

US 11th Cir: Does a disinherited heir have standing to sue for estate planning malpractice?

Posted in Ethics & Malpractice Claims
Littell v. Law Firm Of Trinkle, Moody, Swanson, Byrd and Colton, 2009 WL 2749666 (11th Cir.(Fla.) Sep 01, 2009) The linked-to opinion is the culmination of litigation involving a "Joint Trust" created by a husband and wife in 1992 that has played itself out in two different courts for over 8 years. Stage One: Probate… Continue Reading

California appellate court weighs in on the limits of estate planning malpractice liability

Posted in Ethics & Malpractice Claims
Here’s one of those facts of life most probate lawyers learn early on in their careers: testators aren’t always 100% honest when describing their intentions to potential beneficiaries. For example, just because a client tells his second wife (or girlfriend) she’ll be taken care of in his will . . . doesn’t mean he really… Continue Reading