This case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The appeal in this case involves an application made by the administratrix of an estate to disqualify the attorney as her co-administrator. The attorney previously represented both parties but was dismissed by the petitioner when he participated in the prosecution of a compulsory accounting proceeding trying to surcharge her. The Surrogate’s Court of Queens County ruled that the allegations made by the petitioner were insufficient to warrant disqualification.
Case Background
The decedent passed away on the 28th of March, 1979. The respondent acting as the attorney for the estate filed a petition for letters of administration on behalf of the decedent’s widow and his son of a previous marriage.
The respondent addressed a letter to the distributees indicating that there were several outstanding judgments against the decedent and that the properties of the estate were encumbered by tax and mortgage liens. A New York Probate Lawyer said the letter suggested a sale of some of the properties in order to settle some of the debts.
The widow and her attorney wrote letters to the respondent demanding disclosure of the progress and administration of the estate. None of these demands were answered, although some of the property was sold. The widow contends that these properties were sold without her approval or signature as required.
A proceeding was started in October of 1982 to compel the widow to account. She contends that the accounting proceeding, which aimed to surcharge her, was engineered by the respondent in conflict of his fiduciary duty as her counsel and notes that the order for the proceeding was delivered to her in an envelope from his offices. A Staten Island Probate Lawyer said the respondent has remained silent in response to these allegations.
Case Discussion and Decision
The petitioner has discharged the respondent from further representation of her as the administratrix of the estate and started this proceeding against seeking disqualification from further representation in the affairs of the estate. In her petition she states that the respondent froze her out of participation in the settlement of the estate and that he sold assets of the estate without her knowledge or consent.
Generally, as a rule when an attorney represents more than one client and a situation comes up that poses a potential conflict of between the clients regarding his representation he may not undertake representation of either against the other unless it is shown that no conflict actually exists.
In this case the court finds that the previous order was incorrect. Nassau County Probate Lawyers said there is sufficient evidence to show that the respondent should be dismissed from the case. The order from the Surrogate’s Court of Queens County is reversed and the application to disqualify the respondent from representing the petitioner is granted. The costs are payable by the respondent personally.
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