Exploring the Second District Web Site
September 26, 2013 § 1 Comment
Chancellor David Clark’s Second Chancery Court District web site is a must-visit resource for practitioners who will find themselves before the court in Jasper, Newton and Scott Counties. You will find calendars, contact information, procedural guidelines, and other info that will ease your transition into that district.
Even if you’re not headed to court in East Mississippi, however, this site is a resource that you should not overlook. Some other info you’ll find there:
- The What’s New tab highlights case developments and rules changes that any chancery lawyer will find helpful in any district. As with this site, you can read Judge Clark’s take on it and draw your own conclusions, but when you read his interpretation, you get a glimpse into the chancellor’s thought process on the subject.
- There are some useful forms in several formats that can be completed online and printed out. There are estate information forms and worksheets that you should be using, whether or not they are required in your district. There is an 8.05 form, and a guardianship or conservatorship information sheet. There is even a case filing cover sheet. All can be filled in online and printed out, which is a huge bonus.
- The Memos to Attorneys tab will take you to several memos that, on the surface, instruct attorneys on how to address matters such as removal of disability of minority, the proper designation of pleadings, and de-sensitizing financial information in court filings. I say “on the surface” because they might just prompt you to make some positive changes in the way you handle some of your business in other districts.
Judge Clark has put some work into this site, and you would do well to take advantage of it.
What You Pay For
September 19, 2013 § 3 Comments
Many pro se parties in chancery rely on internet services to provide them with forms and “legal advice” with which they are to prosecute their claims. Most do it in the belief that these services will save them money.
As with attorneys, the quality can vary dramatically from service to service, and, as with all things in life, you get what you pay for.
A few days ago, as I signed R41(d) orders, I ran across a set of instructions that a pro se party had filed along with pleadings in an irreconcilable differences case. It purports to be a 5-paragraph summary of how to obtain a “No-Fault Divorce” in Mississippi. The two paragraphs on procedure were so, well, quaint, that I thought you might find them entertaining:
“In order to begin the divorce procedures in Mississippi one spouse must file a “Bill of Complaint for Divorce” with either their county, or their spouse’s county office of the Clerk of the County Chancery Court. This document explains who the couple is, what assets they have, what the filing spouse wants to receive from the divorce and any other general facts about the marriage. Once the complaint is filed it is the job of the filing spouse, now called the Complainant, to serve his or her spouse (now called the defendant) the complaint and other necessary forms.
“The defendant upon receiving the beginning divorce forms must then file the necessary forms to state that he/she did receive service and he/she does or does not contest. If the defendant does not contest then the judgment will be smooth and the divorce granted quickly. However, if the couple contests, then 60 days must pass before their case can be heard. Once in court, the judge decides the most equitable (fair, not equal) way to divide the property, debts, child custody and any other contested terms in thee divorce.”
This little haystack of legal advice has any number of prickly incomplete, misleading, and inaccurate-advice needles. I am sure any of you will ferret them out easily.
No wonder so many pro se parties find themselves absolutely lost in chancery court. They would almost be better off relying on their own ignorance.
The thing is, not all of these internet providers are so shoddy as the example above. Many sail right through court with all the i’s properly dotted and the t’s accurately crossed. They present real competition for Mississippi lawyers, who must pay office rent, staff salaries, utilities, bar dues, malpractice insurance, and on and on.
There is a tool that would help level the playing field. It’s the limited-scope representation agreement, which is now permissible under our ethical rules. The problem is that most attorneys with whom I discuss the subject are wary of it because they have not been able to come up with an agreement that they feel would adequately shield them from liability.
I wish the bar would get busy and furnish Mississippi lawyers with prototype limited-scope representation agreements. Mississippi has been late to the party on this issue, so, surely, there are proven instruments available from other jurisdictions. Unless and until Mississippi lawyers have the tools to compete with these internet services, the public will suffer from the poor ones, and lawyers will continue to lose business to the more adequate ones.
The real losers in this situation are the lower-middle-income and poor. They rightly feel that most attorneys are beyond their financial capability, so they turn to these internet law-robots. They suffer from poor advice, and lawyers lose some potentially paying business. We need to turn that around, because it is true that … you get what you pay for.
Settling for Something
September 3, 2013 § Leave a comment
We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.
In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.
How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.
An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.
Three clear duties arise from R 1.2:
- The duty to communicate any offer or demand to the client, no matter how unreasonable;
- The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
- The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.
The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.
The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.
It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.
Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
The Power to Bind the Client
July 30, 2013 § 5 Comments
When you accept the responsibility to represent a client and enter an appearance or otherwise hold yourself out as representing a party, the court will presume that you have the authority to speak for and bind that party.
That principle came into play in the COA case of Williams v. Homecomings Financial Network, Inc., handed down July 23, 2013.
In that case, Samuel and Carolyn Williams retained a law firm to sue their mortgage company for fraud. They were two of a group of 16 plaintiffs with similar claims. Their attorney, Martin, signed the complaint initiating the suit, holding herself out as counsel for the Williamses. Another attorney in the firm, Nelson, participated.
Terms of settlement were reached, and the attorney signed an agreed judgment of dismissal without prejudice. All of the plaintiff signed the settlement documents except Samuel and Carolyn Williams, who refused to sign. Their attorney withdrew from representation.
Homecomings filed suit to enforce the settlement agreement, and the chancellor ruled in favor of the mortgage company, whereupon the Williamses appealed.
The main point raised by Samuel and Carolyn on appeal was the admission into evidence of the deposition of their former attorney, which they argued contained inadmissible hearsay. For our purposes, though, it’s the authority of counsel and the power to bind the client that concerns us. Here are some points from Judge Carlton’s COA opinion, which affirmed the chancellor:
- ¶13. [From the chancellor’s opinion] “There is a long-standing principle in [the] law that settlements are contracts which are enforceable according to their terms. An attorney is presumed to have the authority to speak for and bind his client. Parmley v. 84 Lumber [Co.], 911 So. 2d 569 (Miss. Ct. App. 2005). Whether or not an attorney has agreed to a settlement on behalf of his client is a question of fact. Id.
- ¶17. In this case, as previously noted, Martin expressed on the record through deposition testimony that he had the authority to bind the Williamses to the terms of the settlement upon learning from Nelson of the Williamses’ alleged acceptance of the proposed settlement. As also previously noted, the record reflects that Martin signed the complaint against Homecomings on behalf of the Williamses. We thus find that the record provides substantial evidence supporting Martin’s authority as counsel of record to bind the Williamses to the agreement. We also find substantial evidence exists to support the chancellor’s order enforcing the settlement agreement. See Parmley, 911 So. 2d at 573 (¶19). Furthermore, Martin’s testimony that he possessed authority as the Williamses’ attorney to accept the settlement terms, coupled with Martin signing the complaint on behalf of the Williamses, demonstrates that Martin indeed possessed the authority to enter into a settlement and bind the Williamses to the terms of any such agreement with Homecomings. Fairchild, 254 Miss. at 265, 179 So. at 187.
In other words, when you sign the pleadings and act like a lawyer with authority to act in a case, the court is going to presume that you have that authority.
And what are the evidentiary implications of that presumption when the court is called upon to make that finding of fact? Here is what the COA said as to the issues in this particular case:
- ¶16. Mississippi Rule of Evidence 801(d)(2)(C) provides that a statement is not hearsay if “[t]he statement is offered against a party and is . . . a statement by a person authorized by him to make a statement concerning the subject[.]” Our supreme court has held that “[a]n attorney is presumed to have the authority to speak for and bind his client.” Parmley, 911 So. 2d at 573 (¶19); see also Pace v. Fin. Sec. Life of Miss., 608 So. 2d 1135, 1138 (Miss. 1992); Fairchild v. Gen. Motors Acceptance Corp., 254 Miss. 261, 265, 179 So. 2d 185, 187 (1965). Additionally, we recognize the determination of “[w]hether or not the attorney has agreed to a settlement on behalf of the client is a question of fact.” Parmley, 911 So. 2d at 573 (¶19).
So, when you speak on behalf of the client under color of the client’s authority, your statements will be admissible as non-hearsay. Attorney-client privilege obviously restrains the scope of admissibility, but does not proscribe it.
You can help avoid factual disputes over the scope of your authority by using representation agreements that clearly define it. As the case progresses, document key discussions with your client via followup letters. Get your client to sign off on orders and agreements that will affect the outcome of the case.
WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE
May 28, 2013 § Leave a comment
I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.
I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?
The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.
That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).
I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:
¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.
It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.
If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.
WHEN FINANCIAL PROOF IS JUDGE ABUSE
May 22, 2013 § 10 Comments
The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.
Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.
No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.
In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:
¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.
The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.
I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.
Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.
NOTICE FOR A DAY CERTAIN
May 2, 2013 § Leave a comment
Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.
The statutes in this case specify certain notices that must be given to “all interested parties”:
- Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
- And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”
The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.
Here’s what the COA said in the majority opinion by Judge Griffis:
¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.
So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.
THE IMPORTANCE OF THE SPONSORING WITNESS
April 23, 2013 § 2 Comments
The COA case of Estate of James D. Hodges, Deceased: Hodges v. Hodges, decided March 12, 2013, stands for the important proposition that, merely because you have an appraisal report, it does not mean that the judge can consider it.
The case involved a property dispute in an estate between Daniel, son of the decedent, and his step-mother, Susan. At a hearing in 2010, the then-sitting chancellor ordered Daniel to obtain appraisals of property in controversy, and that, if Susan was unhappy with the appraisal she could obtain her own. Daniel hired an appraiser, Livingston, to do the work. Susan, however, never got her own appraisals.
At trial in 2011, before another chancellor who replaced the original chancellor, Susan objected to admission of the appraisals on the ground that Daniel did not call the appraiser to sponsor and be cross examined about them. The judge ruled that they were admissible because the first chancellor had ordered them. No doubt he also pointed out that Susan could have gotten her own appraisals if she were not satisfied with Daniel’s, per the first judge’s explicit order. Susan appealed.
Judge Lee, for the court, stated:
¶8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So. 3d 724, 730 (¶12) (Miss. Ct. App. 2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”
¶9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
¶10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] . . . must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946-947 (¶14) (Miss. 2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.
¶11. In order to determine reliability under the second prong of the Daubert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So. 2d at 947 (¶16). The trial judge may look to factors including:
“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).
¶12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.
¶13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the case. For this reason, we reverse the decision of the Simpson County Chancery Court.
A few points:
- When Daniel got the appraisals he could have propounded requests for admission to Susan to get her to admit to the authenticity and accuracy, etc. of the appraisals so that he did not have to call a sponsor. If Susan denied the request, causing Daniel to incur expense to call the witness who did establish the authenticity and accuracy, then he could petition the court to order Susan to reimburse his expenses.
- I would bet that the first chancellor’s order that Susan could obtain her own appraisals if she did not agree led everyone, second judge included, to believe that the burden was on Susan to do something if she did not agree. When she did not, it appeared that she had waived any objection. Only problem is, the first judge’s ruling did not relieve anyone from complying with the MRE.
- Judge Lee’s analysis is a great template for how you need to evaluate proof you will need to establish some points at trial.
- Think these things through. Instead of just stumbling into the court room on the date set for hearing, think ahead. Call opposing counsel and ask whether she is going to require you to call the expert. If she tells you that won’t be needed, and you get to trial and the other side reverses field, ask for a continuance to get the witness you need. In this case, I think counsel for Susan could easily have gotten a continuance for that purpose on the basis that the first judge’s ruling confused everyone.
WHOSE ACCOUNT IS IT, ANYWAY?
April 15, 2013 § 2 Comments
Remember that every pleading in an estate, guardianship and conservatorship must be signed by the fiduciary, and not the attorney or anyone else. And that includes “accounts and reports.” That’s what UCCR 6.13 expressly states.
In your mad frenzy to avoid a show-cause order, it sometimes seems expedient to bypass that sluggish fiduciary altogether and just do it yourself, but if you sign that motion, or that account, or that inventory, you have really accomplished nothing. It’s the fiduciary who is on the line, and her name needs to be on the dotted line.
And, although it is the fiduciary’s account, strictly speaking, you stand to suffer the slings and arrows of outrageous fortune yourself if the case is delinquent. UCCR 6.17 says, “If, without cause, an attorney fails to file accountings or other matters in probate cases … after being so directed in writing by the Court, the Court may consider such misconduct as contempt.”
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