August | 2010 | The Better Chancery Practice Blog

PROPOSED RULE CHANGES THAT MAY AFFECT YOU

August 17, 2010 § 10 Comments

The Mississippi Supreme Court is considering two rule changes, one of which will definitely affect you, and the other might indirectly.

The first is a change to Rule 6.1 of the Rules of Professional Conduct that would make pro bono service mandatory and would increase the fee to be paid in lieu of doing pro bono work from $200 to $500.

The second is a change to the appellate rules to increase the pro hac vice admissions fees from $200 to $500.

Your comments are invited by the Supreme Court, and may be submitted via this link.

If you don’t care what I think about these measures, stop reading here.

My opinion is that it is a good thing to make some level of pro bono service a professional requirement. And no, I am not talking about the deadbeat clients who will not pay their fees and are losses on your books. I am talking about the deliberate decision to volunteer through the Mississippi Pro Bono Project or to give your services free to a needy litigant or non-profit who needs legal help and legitimately can not pay. The numbers of pro se litigants are growing every day; if you don’t believe me, ask any Chancery Clerk or judge. Every time I ask a pro se litigant why they did not get an attorney, the answer is the same: “I can’t afford a lawyer.” Mandatory pro bono attacks the problem at its source by providing access to a lawyer, which in turn means access to court, to people who otherwise would not have it. And I am not talking about taking on an anti-trust suit or the like. You can do a couple of simple no-fault divorces and do a lot of good, both for the client and for the court. (Side note … I have a blog post coming about the dimensions of the pro se problem and one approach to solving it).

As for the $500, I think the practical effect will be that a lot of solo and small-firm practitioners and small-town lawyers will end up doing pro bono work, and a lot of high-powered and big-city lawyers will buy their way out of their duty. On one level, I find it repulsive that it would work that way because it’s not fair to lawyers of modest means, and it’s repugnant to think that one can meet a professional and what I consider a moral obligation with filthy lucre. On another, more practical level, you have to admit that even if there were no “buyout” provison, and every lawyer were required to do pro bono, there would be lawyers of means who would shuffle their duty off on a subordinate. In that case, we might as well reap their money and do something worthwhile with it. And before you ask me, I do not know what the Supreme Court is doing with that money.

As for the fee for pro hac vice lawyers, I would not mind seeing it doubled, tripled or increased by ten or more. If there is litigation in Mississippi, out-of-state attorneys should have an incentive to turn it over to Mississippi lawyers. Too often the out-of-state lawyer pays the Mississippi attorney a pittance to be a figurehead, reaps the gold and scoots. I would like to see that pattern reversed.

UPDATE ON TRIVIA

August 16, 2010 § Leave a comment

If you haven’t grappled with Wicked Mississippi Trivia yet, your time is running out. The answers will be up Friday.

Feel free to post your guesses or answers in a comment to the WMT post. And don’t be ashamed if you have to do a little digging. Those aren’t all easy questions by any means.

For the two or three of you who haven’t gotten all the correct answers yet, Wednesday I will post links to two interesting sources that may help you answer some of them.

TEN TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

August 16, 2010 § 16 Comments

If your case involves economic issues or property division, Rule 8.05 of the Uniform Chancery Court Rules requires that you provide a financial statement complying with the form published in the rules.

An effective financial statement can make or break your case. It is the template for your client’s testimony, and a poorly-prepared statement will make your client cannon fodder for cross examination, while a well-prepared one will inoculate him or her from serious damage. Most importantly, the financial statement is what the judge will spend the most time mulling over when fashioning an opinion. The more effective your statement, the better off your case will be.

Here are ten ways you can make your Rule 8.05 statements more effective:

Never present a financial statement that you have not gone over in detail with your client. As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it. If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it. If the client can not defend the number, suggest that the client reconsider it. And while you’re at it, make sure that your client knows what he or she included in every category. Are there duplications? For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing? Don’t just take your client’s figures at face value; inquire about them. I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her. When I asked what she usually spent on entertainment, she said $50. In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client. Her attorney had simply taken her word for the $480 expenditure without questioning behind it.
Always have the statement typed so that it clearly presents your client’s position. A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job disagreeably more difficult. Take the time to type the figures in their proper places and make sure they add up properly. Remember the old adage: “The easier you make the judge’s job, the more likely it is you will prevail.” Okay, that’s probably not really an old adage, but it should be.
Make sure the tax returns are attached. Copies of the preceding year’s state and federal income tax returns “in full form as filed” are required. This means that all schedules and w-2’s must be attached. If a document was sent with the original return to the IRS, a copy of it must be included.
Have an adequate number of copies. “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.” This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself. It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it. It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.
Include a complete employment history. Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule: “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.” This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.
Be sure to explain any discrepancies. If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it. If expenses exceed income, how is the client managing to pay the difference? If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.
Use an up-to-date statement. A financial statement prepared six months ago in discovery and not updated since is simply not a statement of “actual income and expenses and assets and liabilities,” as required in the rule. It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation. If you come to court without an updated statement, the court may continue your trial to require you to prepare one.
Have your client sign and date the statement. The Court of Appeals has been critical of unsigned financial statements.
Make sure the entries really are what they say. A voluntary 401(k) contribution is not “mandatory retirement,” and should not be listed on that line. Nor is a private health insurance premium “mandatory insurance.” The term “mandatory” as used on the form refers to items required by law, such as PERS retirement.
Remember that a month has more than four weeks. A month is 52 weeks divided by 12, or 4.3. A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

SHRIMP AND SAUSAGE JAMBALAYA

August 14, 2010 § 3 Comments

I’ve talked before about authentic Cajun cooking. Cajun cuisine is home cooking. Trying to “gourmet-ize” Cajun cooking would be like turning meatloaf and mashed potatoes into fine dining. It can certainly be done, but it loses a lot of its charm.

One important aspect of Cajun cuisine is its reliance on what is on hand. If you have fresh oysters in the fridge and a few ducks in the freezer, you’d think of cooking up an oyster and wild duck gumbo. A pound of Louisiana crawfish will get you an étoufée, or a crawfish stew. A couple of crabs and a stew or gumbo may be in order.

Rummaging around in the refrigerator after work yesterday I found some nice, mild pork and beef smoked sausage, shrimp and all the makings for a delicious jambalaya.

The ingredients are ready

Jambalaya is a rice dish and one of the few true Cajun dishes that combine a roux and tomatoes. Where I come from, jambalaya is comfort food par excellence. Jambalaya includes almost any seafood or meat or bird you like, in any combination, cooked in a liquid with rice. The result is a mouth-watering amalgam of flavors and textures that will entice you to have several servings, unless you’re being polite.

Another thing you need to know about Cajun cooking is that the ingredients, quantities and seasonings are all approximate. My jambalaya calls for a small roux, and I know how much oil and flour will do the job to my satisfaction without measuring. Same with the amount of onions, bell pepper and celery, salt, pepper, and shrimp and sausage. I like my jambalaya on the tomato-y side, some do not. According to your taste, you may like more celery and shrimp and less sausage, or more oil and less flour in your roux, or you may even prefer to make your jambalaya without a roux. It’s all in what you like.

One thing I recommend: use medium-grain or even short-grain rice. Long-grain rice does not absorb the liquids or release its glutens as it cooks like medium- or short-grain rices do, and the result is entirely different. Medium- or short-grain produces an almost risotto-type result that is juicy, creamy and much more satisfying than its drier long-grain counterpart.

My jambalaya calls for a roux, but some people prefer it roux-less. If you choose to cook it without a roux, simply cook down the vegetables in a couple of tablespoons of olive oil before adding the other makings. I like roux in jambalaya because it thickens it and makes it less soupy. For the roux, use good quality vegetable oil that can stand up to high heat; butter or olive oil will burn before you get to the final result. Cook on medium-high to high heat, stirring constantly. Once the roux starts to bubble even slightly, do NOT stop stirring. Be careful not to splash while you stir. We call roux “Cajun napalm” for a good reason, and it’s not a term of endearment; it’s a description of its ability to burn the daylights out of you if it splashes on you. My grandmother taught me to use a wooden spatula to stir. It moves more roux at a time and makes your job easier. The roux for this recipe is a golden roux, more or less the color of a paper bag. It will impart some flavor, but its main function is to thicken the dish. Caution: If you see black specks in the roux, or it smokes and smells strong, you’ve burned it and will need to dump it out (safely) and start over.

When you prep your vegetables, cut them coarsely so they don’t disappear in the cooking process.

So we begin with a roux …

Flour and oil ready to cook

... cooking ...

Golden brown, ready for the next step

Mix the vegetables into the roux until ...

... they are coated by the roux, and then let them cook down

Then add the tomatoes and seasonings and let them percolate a while

Add in the rice, shrimp, sausage, stock and ...

Cover to cook

Proper Cajun cooking attire

Tick, tock ... waiting patiently for the rice to absorb the liquid ...

Done and ready to serve

Plated and ready to be garnished

The flavors blend into a satisfyingly delicious melange that you will find comforting, particularly on a stormy night like we had in Meridian last night.

Now try it for yourself. My advice is to start with a recipe and over time to refine it to your own taste. You may prefer it without the sausage, or even without the shrimp, with chicken instead, or some other combination thereof.

Here’s a recipe to use for a starting point, but remember that everything is subject to adjustment and change to suit your taste and preferences. Enjoy:

SHRIMP AND SAUSAGE JAMBALAYA

3 tbsp. vegetable oil

3 tbsp. flour

1 ½ cups chopped onions

½ cup chopped bell pepper

1 cup chopped celery

1 clove garlic

Salt to taste

black and red pepper to taste

2 ½ cups chicken stock

1 pound raw peeled shrimp

½ pound mild smoked sausage, chopped into 1/4″ slices

1 can whole tomatoes

1 can tomato sauce

2 cups raw, medium-grain rice

Make a golden brown roux with flour and oil. Add onions, peppers, celery and garlic, and let cook until transparent, stirring often. Add tomatoes and tomato sauce and cook until oil rises to the surface. Stir in raw rice, raw shrimp, and 2 ½ cups chicken stock.

Cook, covered, over low heat until rice is tender. Add more oil and water if mixture appears to be too dry. Garnish with onion tops. Serve hot.

CREDIT: Lisa took all the photos here, along with a few “In your face” photos I refused to include. Here’s the credit she insisted on, plus “Happy Thirty-Ninth Anniversary 8-14-10.”

“QUOTE UNQUOTE”

August 13, 2010 § 3 Comments

“There’s an old saying about those who forget history. I don’t remember it, but it’s good.” — Stephen Colbert

“I get up every morning determined to both change the world and have one hell of a good time. Sometimes this makes planning my day difficult.” — E. B. White

“Health nuts are going to feel stupid someday, lying in hospitals dying of nothing.” — Redd Foxx

Final resting place of Redd Foxx, next to his mother, Mary Carson

OLD TIMES HERE ARE NOT FORGOTTEN

August 13, 2010 § 2 Comments

“The past is never dead. It’s not even past.” — William Faulkner in REQUIEM FOR A NUN

“The past is a foreign country; they do things differently there.” — L.P. Hartley in THE GO-BETWEEN

No region of our nation has revered, understood, embraced, been bedevilled by and romanticized its past more than has the South. Much of the South’s history since the Civil War has been the history of evolving race relations in a culture determined to preserve inviolate its notion of its past. Beginning in the 1950’s, however, the irresistable force of change in the form of the civil rights movement collided head-on with the immovable object in the form of “massive resistance,” and the resulting explosion that destroyed the foundation of segregation began the transformation of southern culture that continues to this day.

Bill May called my attention to DIXIE, by Curtis Wilkie. I had seen this book in various book stores (as I had seen its author, Mr. Wilkie, around Oxford), but had passed it over. On Bill’s recommendation, I got a copy and read it.

On its face, DIXIE is a history of the South’s agonizing journey through the watershed era of the civil rights movement and into the present, a chronicle of the events that shook and shattered our region and sent shock waves across the nation. The events and figures parade across his pages in a comprehensive panorama: The assassination of Martin Luther King, Jr., James Meredith and the riot at Ole Miss, Ross Barnett, Jimmy Carter, Eudora Welty, Brown v. Board of Education, Freedom Summer, Aaron Henry, the Ku Klux Klan, the struggle for control of the Democratic Party in Mississippi, White Citizens Councils, sit-ins, John Bell Williams, William Winter, Willie Morris, Charles Evers, Byron de la Beckwith and Sam Bowers, Trent Lott and Thad Cochran, William Waller, the riots at the Democratic Convention in Chicago in 1968, and more. As a history of the time and how the South tore itself out of the crippling grip of the past, the book is a success.

The great charm and charisma of this book, however, is in the way that Wilkie weaves his own, personal history through the larger events, revealing for the reader how it was to be a southerner in those days, both as an average bystander and as an active participant.

The author grew up in Mississippi, hopscotching around the state until his mother lighted in the town of Summit. His recollection of life in the late 40’s and 50’s in small-town Mississippi echoes the experiences of many of us who were children in those years, and will enlighten those who came along much later.

Wilkie was a freshman at Ole Miss when James Meredith enrolled there in 1962, sparking the riot that ironically spurred passage of the 1964 Civil Rights Act. On graduation Wilkie took a job with the Clarksdale newspaper and developed many contacts in Mississippi politics that eventually led him to be a delegate at the 1968 Democratic Convention in Chicago, where he was an eyewitness to the calamitous events there.

Through a succession of jobs, Wilkie wound up a national and middle-eastern corresondent for the BOSTON GLOBE, and even a White House Correspondent during the Carter years. His observations and first-hand accounts of his personal dealings with many of the leading figures of history through the 60’s and 70’s are fascinating.

The author

When he had left the South, Wilkie believed he was leaving behind a tortured land where change could never take place, and where he could never feel at home with his anti-racism views and belief in racial reconciliation. He saw himself as a romantic exile, a quasi-tragic figure who could never go home again, but over time he found the northeast lacking, and he found the South tugging at him whenever he returned on assignment.

When his mother became ill, Wilkie persuaded his editor to allow him to return south, and he moved to New Orleans, from where he covered the de la Beckwith and Bowers Klan murder trials and renewed his acquaintanceship with many Mississippi political and cultural figures, including Willie Morris, Eudora Welty and William Winter. He began to discover that the south had undergone a sea change in the years that he was away, and that the murderous, hard edge of racism and bigotry had been banished to the shadowy edges, replaced largely by people of good will trying their best to find a way to live together harmoniously. He found a people no longer dominated by the ghosts of the ante-bellum South.

In the final chapter of the book, Wilkie is called home for the funeral of Willie Morris, and the realization arises that he is where he needs to be — at home in the South. His eloquent end-note answered a question Morris had posed to him some years before: “Curtis, can you tell us why you came home?” Wilkie’s response:

Just as Vernon Dahmer, Jr. had said, I, too believe I came home to be with my people. We are a different people, with our odd customs and manner of speaking and our stubborn, stubborn pride. Perhaps we are no kinder than others, but it seems to me we are … We appreciate our history and recognize our flaws much better than our critics. And like our great river, which overcomes impediments by creating fresh channels, we have been able in the span of Willie’s lifetime and my own to adjust our course. Some think us benighted and accursed, but I like to believe the South is blessed with basic goodness. Even though I was angry with the South and gone for years, I never forsook my heritage. Eventually, I discovered that I had always loved the place. Yes, Willie, I came home to be with my people.

Those of you who lived through the troubled years recounted here will find that Wilkie’s accounts bring back memories that are sometimes painful and sometimes sweet. For readers who are too young to recall that era, this book is an excellent history as well as an eye-opening account of what it was like to grow up in that South.

Wilkie’s new book, THE FALL OF THE HOUSE OF ZEUS, about the Scruggs judicial bribery scandal, is due out in October.

Wilkie and visiting Harvard students in the Circle at Ole Miss at the site of the 1962 riot

TRIAL BY CHECKLIST: MODIFICATION OF CHILD SUPPORT

August 12, 2010 § 9 Comments

A practice tip about trial factors is here.

The trial court is required to consider the factors set out in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), in determining whether child support should be modified.

Increased needs caused by advanced age and maturity of the children;
Increase in expenses;
Inflation factor;
The relative financial condition and earning capacity of the parties;
The physical and psychological health and special medical needs of the child;
The health and special medical needs of the parents, both physical and psychological;
The necessary living expenses of the paying party;
The estimated amount of income taxes that the respective parties must pay on their incomes;
The free use of residence, furnishings, and automobiles; and
Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child. You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial. Most importantly: It is not adequate to prove only that the income of the paying parent has increased.

WICKED MISSISSIPPI TRIVIA

August 11, 2010 § 15 Comments

Answers next week

1. Which Mississippi county changed its name in 1865 to Davis County in honor of Jefferson Davis, and the name of its county seat to Leesburg, in honor of Robert E. Lee? What was the name of the original county seat? (Note: the names were restored to their originals in 1869).

2. What is the present-day name of the Mississippi county that was established in 1871 as Colfax County?

3. From which present-day county did Bainbridge County separate in1823, only to merge back into its original county in 1824?

4. What is the present-day name of the Mississippi county that was established in 1874 as Sumner County?

5. In 1918 , the last county to be established in Mississippi was formed. What is its name?

6. What present-day county seat was founded in 1832 as the Town of Jefferson? (Note: no relation to the Faulkner’s fictional town of the same name).

7. John L. Sullivan defeated Jake Kilrain in 1889 in the last official bare-knuckled bout in what was then Perry County. In which present-day county is the site located?

8. President James K. Polk owned a 1,120-acre estate in the Troy community of which present-day county from 1835-1849?

9. Which Mississippi county seat was the home of thirteen generals of the Confederacy?

10. Which Mississippi town was named after a newspaper published in another state?

11. In which Mississippi county did Teddy Roosevelt’s famous bear hunt take place in 1902 in the community of Smedes?

12. In which Mississippi county does the “Southern cross the Dog?”

13. Which Mississippi county’s name is derived from an Indian name meaning “tadpole place?”

WAIVER OF INVENTORY AND APPRAISEMENT

August 10, 2010 § 3 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year. Used with his permission.]

Intestate Estates:

The goods and personal estate shall be inventoried unless the court or clerk “for good cause,” not require that it be filed. § 91-7-109, MCA.
If appraisement is not required, an inventory pursuant to § 91-7-93, MCA, shall be made within 90 days of the issuance of Letters of Administration.
If personal property not included in the original inventory comes into possession of the Administrator, a supplemental inventory describing those items shall be returned within 30 days. § 91-7-95, MCA.
An Administrator who fails to file a timely inventory may be removed. §91-7-105, MCA.

Testate Estates:

Inventory may be waived “for good cause” under § 91-7-109, MCA, or if the Executor is a residuary legatee under § 91-7-43, MCA.
Although the statutes do not expressly provide that inventory can be waived by the Will of the testator, it is common practice for the court to recognize the request. Perhaps the “good cause” exception is broad enough to allow waiver of the requirement by the Will. § 91-7-109, MCA.

DUTIES OF THE ATTORNEY IN PROBATE MATTERS

August 9, 2010 § 2 Comments

Not too long ago, during a proceeding involving a minor’s settlement, the following exchange took place between a veteran lawyer (who practices primarily in Circuit Court) and me:

Judge: Your claim for attorney’s fees has to be supported as set out in Rule 6.11.

Lawyer: I am sorry, your honor, I was not aware of your local rules.

Judge: That is not a local rule; it is the Uniform Chancery Court Rule.

Lawyer: When were uniform chancery rules adopted?

If ignorance is bliss, that is one happy lawyer.

Sometimes I feel that even lawyers who are fully aware of the Uniform Chancery Court Rules (UCCR) have no idea what they include because they do not bother to read them. Take the requirements for lawyers in probate matters. From time to time, I have to remind lawyers of their duties, and when I do it often happens that they are surprised to learn of it. Could it be that lawyers nowadays are just too busy to familiarize themselves with the law? Now that’s a scary thought.

My best advice is to get out your rule book and read UCCR 6.01 – 6.17 right now.

Okay, I know you’re too busy to do it right now, so here is an overview:

Rule 6.01 requires that every fiduciary must have an attorney unless the fiduciary is licensed to practice law. The attorney’s compensation will be fixed by the Chancellor, and the attorney may not withdraw unless permitted to do so by the Chancellor. As a practical matter, you will not be allowed to withdraw unless and until an attorney takes your place, so you need to think twice before entering an appearance in a probate matter.
Rule 6.02 expressly states that “Every fiduciary and his attorney must be diligent in the performance of his duties. They must see to it that …” publication to creditors is promptly made, inventories and accounts are timely filed and presented, all other statutory requirements are timely and properly met, and that ” … estates of decedents are completed and assets distributed as speedily as may be reasonably possible.” In plain English, that means that the lawyer is every bit as responsible to the court as is the fiduciary. Your professional standing, reputation with the court, and even your license in some cases, are on the line. It also means that estates are not to be kept open for years while the attorney deals with other matters.
Rule 6.02 also provides as to guardianships and conservatorships that the attorney shall report promptly to the court a guardian’s or conservator’s failure to perform his or her duties, and if the lawyer fails to do so, the lawyer may be held in contempt.
Rule 6.03 requires that every accounting must include a statement of all assets of the estate. For money, bonds or securities, a computer printout is not adequate; the accounting must include a sworn certificate by an officer of the bank that the funds are actually on deposit in the amount claimed.
Rule 6.04 is perhaps the most overlooked of all, but it is perhaps also the most crucial. It requires that every disbursement be accompanied by a voucher in the form required by §91-7-279 and 93-13-71, MCA. It is not enough to recite in the accounting, for example, that “The guardian spent $50 on clothes for the ward as authorized by the court in the last accounting.” The accounting must include vouchers documenting the expenditure. In reporting the expenditures, Rule 6.05 mandates that where the expenditures are spelled out in the accounting, the voucher number, date of the disbursement, name of the payee, purpose of the expenditure, and date of any court order authorizing the payment must be stated.
Rule 6.06 spells out how to deal with lost vouchers.
Rule 6.07 states that claims arising after death of the decedent such as for funeral bills, monuments and attorney’s fees, must be approved by the court before payment.
Any request for funds for support of a ward must include the present amount of the estate, the amount of the ward’s income, and the amount of any previous allowance, according to Rule 6.08. Any request to expend funds for necessities that are the responsibility of the parent will not be approved unless the guardian justifies the request under oath.
Rule 6.10 deals with settlement of wrongful death or injury claims. An outline for handling minor’s settlements is here.
Rule 6.11 sets out the required information to support a claim of the fiduciary for a commission or extraordinary compensation, which includes the total amount of the estate handled, the total amount disbursed, the balance on hand, the nature and extent of services rendered, the expenses incurred by the fiduciary, and the total amount of any amount previously allowed. The rule also states that neither fees for fiduciaries nor for attorneys shall be based on the value of any real property.
Rule 6.12 governs petitions for attorney’s fees. The attorney must support the request with the same information required of a fiduciary as in Rule 6.11, and an itemized statement of services rendered. There are separate requirements for recovering damages for wrognful death or personal injury, and where a contingent fee contract has been approved.
Rule 6.13 requires that the fiduciary swear to and sign every pleading, accounting and report. It is not adequate, as sometimes happens, that the attorney sign the documents.
Rule 6.14 provides that a copy of the will must be attached to the petition to open the estate. Recently a lawyer (from out of town) argued with the clerk that the rule means that only a copy needs to be submitted, and that he should retain the original. That is not the meaning of the rule, and it is not the law. § 91-7-31, MCA, requires that the original will, when admitted to probate, shall be recorded and retained by the clerk. The rule merely requires that a copy of it be attached to the petition for ready reference by the court and other interested parties, and so that the original can be secured.
Finally rule 6.17 bears stating verbatim: “If, without cause, an attorney fails to file accountings or other matters in probate cases (estates, guardianships and conservatorships) after being so directed in writing by the Court, the Court may consider such misconduct contempt.” Misconduct; such a meaningful, menacing word fraught with professional peril.

Practice Tip: Quit relying on forms to do everything and start reading the rules. I repeat: Start Reading The Rules. You stake your career on your performance; start staking your performance on knowledge of what you are doing. You have a professional duty to your client to know the law, to inform, advise and guide your client, and to keep your client as well as yourself in compliance. As the attorney in a probate matter the rules make it clear that you will be held every bit as responsible as the fiduciary when things go wrong. The fiduciary, however, seldom has a law license and career on the line like you do.

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