Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

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Category Archives: Ethics

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

Posted in Contested Guardianship Proceedings, Ethics
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, 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
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
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
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
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
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
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

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

Posted in Ethics
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 Ethics
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

3d DCA lectures probate litigator on ethics

Posted in Ethics
Hernandez v. Gil, — So.2d —-, 2008 WL 5156623 (Fla. 3d DCA Dec 10, 2008) [Attorney Interview] You know you’re having a bad day when the 3d DCA writes an opinion for no other reason than to lecture you on your ethical duties. Although the arguments raised by the appellant below and here are meritless … Continue Reading

Trial begins in multimillion dollar estate-planning malpractice claim against Orrick, Herrington & Sutcliffe

Posted in Ethics
As a matter of law, an ethics violation isn’t the same as committing malpractice, but as a practical matter, the two are almost always interconnected. For me, the significance of this fact is that ethics rules can be your best friend. They help you identify future landmines before they blow up on you and take … Continue Reading

FL SCT: Florida will-drafting attorney at center of $1.5-million estate battle has law license suspended

Posted in Ethics
This is a follow-up to a case I previously wrote about here.  The focus of my prior blog post was whether the attorney who drafted the contested will, Alan Watson, had violated Florida Bar Ethics Rule 4-1.8(c), which prohibits an attorney from preparing a will giving the attorney or a person "related" to the attorney any … Continue Reading

4th DCA: “Crowdsourcing” appellate briefs in million dollar malpractice verdict against Gunster

Posted in Ethics
The level of interest expressed in connection with the million dollar malpractice verdict against Gunster recently upheld by the 4th DCA [click here] is so high, I’ve decided to post copies of the 200+ pages of appellate briefs filed in that case as follows: Initial Brief of Appellants, Gunster Yoakley and Daniel Hanley Appendix to Initial Brief of … Continue Reading

Malpractice insurance carrier: wills and estates-related legal malpractice claims on the rise

Posted in Ethics
I’ve received a number of inquiries regarding the $1 million estate-planning/probate malpractice verdict recently upheld on appeal, which I previously wrote about [click here].  I think many practitioners are trying to figure out what went wrong in that case and what they can do to avoid making the same mistakes. Against this backdrop, a recently published article by … Continue Reading

North Carolina tax attorney cleared of all tax-fraud charges related to off shore trust scheme

Posted in Ethics
In a blog post entitled Offshore trust scheme leads to former U.S. Attorney pleading guilty to tax fraud, I wrote about two North Carolina attorneys who had been charged with conspiring to commit tax fraud in connection with a tax evasion scheme revolving around the use of off-shore trusts. One attorney, Samuel T. Currin, a former … Continue Reading

The Attorney-Client Privilege and the ‘Complete Lawyer’: More than Mere Legal Advice

Posted in Ethics
In order to be effective, trusts and estates attorneys must not only tell their clients what the law is, they also need to make recommendations on how their clients should proceed given the status of the law.  For example, counseling a trustee on the meaning of Florida’s "prudent investor rule" (F.S. 518.11) isn’t very helpful if you can’t provide options and recommendations … Continue Reading