Probate Court Exploitation in Maricopa County, AZ

One of the areas of the law that I find most interesting that I have only a passing familiarity with as the law currently exists is Probate Law.  I've covered a number of cases over the last year where lawyers or others have ransacked estates or exploited the aged or beneficiaries of testamentary estates for their own personal gain.  The dark advice when I was a young Bad Lawyer was: practice Probate Law, your clients can rarely complain--because, they are dead or incompetent.  Probate Law deals with not only decedent estates but it is intimately involved in the administration of guardianships and other forms of financial estates for handicapped or aged persons. 

Technically, the word "probate" means proof and refers to the process where a court looks at whether a will or trust is "true" in the sense of being the Will or Trust instrument of the person who purported to sign (or "execute') the document.  In reality, Probate courts have jurisdiction or power to decide all sorts of matters relating to property utilizing the tools of the old courts of "equity."  During the English common law era, courts of law and courts of Chancery had separate jurisdiction, in the modern era in America, under the rules of civil procedure these jurisdictional distinctions have been "merged" with codified probate laws.  While there are differences from state to state there are also many similarities based on "uniform" codes enacted by most states.

The coverage of issues in the Maricopa County Probate Court by AZCentral.com is worth reading.  As with all things, Maricopa, the problems there mirror the problems in OurCounty, and in your county.  Over the next year I plan to focus on the issue of lawyers, judges and others involved in elder abuse.  It will be a theme of this blawg, with the point being that we all hope to live long, healthy, and prosperous lives. 

The Arizona Republic found that the Maricopa County Probate Court has allowed probate estates to become "cash machines" for those who would abuse the elderly and handicapped.  The Republic's investigative work has identified four issues:  1. Familial and other disputes trigger the problems of system-exploitation with "fees mounting quickly;" 2. Cozy relationships among the lawyers, Judges, and probate vendors cost the vulnerable and beneficiaries excessively; 3. Persons objecting to the rapacious practices of these exploiters end up getting blamed; and 4. Oversight is lax.

Gotta change this system, before we all get old.

Send My Sister to the Slammer!

The lady in the picture is telling a sentencing Judge that her sister should be sent to the slammer for "embezzling" funds from theri parents' retirement account, maybe $100,000, maybe more.  The account at MLive by John Tunison is a classic recurring drama that runs in families with aged parents that I've seen played out over and over again.  The woman in the picture is Janet Unger, her sister Eloise Russo was Grand Rapids-area, guardian rendering care to her parents and two mentally handicapped brothers.  Ms. Russo misappropriated funds according to Probate Court records.

I actually defended a federal lawsuit not dissimilar to this case in which three vicious siblings made outrageous allegations of misappropriation of funds.  The conduct of one of the sisters in the case I defended was os over the top that the Federal Judge hearing the case was on the verge of jailing her for discourtesy.  Every hearing was like being "racked."   As it turns out, unlike the situation in Michigan nearly every dime was accounted for and legitimately spent by the other family members for their mother's support.  The argument was about control and who would get what when mother ultimately died.  When Mom died the lawsuit ended. . . well, changed venues and states. How do you spell relief. . . change of venue.

The story of Mrs. Unger and her sister brings it back.  Mrs. Unger's account of her sister's misdeeds sounds a little exaggerated.  Her courtroom language was florid, and I get the impression that the Judge who was asked to send the sister to the slammer concluded that Mrs. Unger was not too impressed by the sister's plea to jail her sibling..  The Judge gave the sister, Mrs. Russo, probation, although Mrs. Russo is going to have to deal with restitution requirements in Probate Court. 

I am so beleaguered by the dark side of the internet, cable news, disciplinary and tax nightmares, that a good old family feud was a slight relief. 

There is so little love and compassion in the world.  It's funny that I would talk about love, but I loved what I did as an advocate for people.  I was the Bad Lawyer, but I cared about my clients and the wrongs being done to them.  But I don't think I ever lost the feeling of compassion or empathy for others.  The deep loss I feel, the shame and humiliation makes it very difficult to stand upright.  I keep telling myself, don't quit--so, I think, what must it be like for a woman like Mrs. Russon to stand in court and hear her sister tell a Judge to send her to jail over money that may or may not have been spent on the care of their parents.  In that case Mrs. Russo lost her job, her family, and now her reputation.  Very sad.

Memphis Lawyer Steals from Children's Trust Funds to Gamble His Career Away

James Hoots, (pic) a Memphis, Tennessee bad lawyer who specializes in Probate matters was stealing from a children's trust fund so he could feed his gambling addiction according to the Memphis Commerical Appeal.  This is from the CA newsite story:  James M. Hoots has been charged with stealing some $76,000 from a children's trust fund and blowing it at the Tunica casinos.


Hoots . . . has been licensed in Tennessee since 1990.  The 56-year-old attorney was booked into the Shelby County Jail on Friday and is scheduled to be in General Sessions Criminal Court on Monday.  He was to be released on his own recognizance.  Authorities received a complaint several months ago that Hoots had taken money from the children's trust fund without permission.

The administrator of the estate, Lana Scott, told detectives that when she confronted Hoots about the missing money, he told her he had a gambling problem and had lost it.  'I took the children's money and took it to Tunica to try to make more money,' Scott said Hoots told her in November.  She said that on Nov. 18, Hoots gave her a promissory note, pledging to pay the children $76,206.10.  The additional $206.10 was for interest normally earned on probate accounts, according to an affidavit.  He is charged with theft of property over $60,000, which carries a standard sentence of eight to 12 years in prison.
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Casino investment strategies tend not to "make more money" as Mr. Hoots claims to have believed. 

Over-Lawyered? Probably

This comes by way of AboveTheLaw.com which links to MassLawyersWeekly.com report on the decision in the Matter of Bartley J. King, a probate estate worth $1.2 million dollars.  The law firm handling the matter billed $800,000! Yikes!  The Masschusetts Supremee Judicial Court thinks, that just maybe, the matter was overbilled and overlawyered.  This is from the MassLawyers Blawg post:

K&L Gates, which charged a client $800,000 to defend a probate estate of $1.2 million, has been accused of  'unnecessary overlawyering' by the Massachusetts Supreme Judicial Court.


In a ruling in In the Matter of the Estate of Bartley J. King, released today, Justice Margot Botsford wrote for a unanimous court that 'a total of eighteen attorneys and paralegals were representing [the client], a remarkable number especially when one takes into account the motion judge’s view that the theories advanced by the contestants were not ‘overly complex.’ 'Even a cursory review of the billing records suggests that among all these attorneys there was duplication of effort,' the judge added, citing the fact that 'a fair amount of billing for the time of two or more attorneys who were attending the same hearing.' The SJC sent the case back to the Probate & Family Court to reconsider the fee award.

Stephen G. Howard, who led K&L Gates’ work in the case, had racked up the fees fending off attacks on the will of a 91-year-old who bequeathed the entirety of his $1.2 million estate to one of his daughters. Left out, his two other children and nine of his grandchildren contested the will, but when the case went to trial in 2007, the daughter, Lois A. Folan, won on all counts.

Afterward, Howard asked to be paid $710,322 in legal fees and $95,868 in costs. Lawyers for the other families balked, and a Probate & Family Court judge eventually forged a compromise, awarded $574,322 in fees. Boston lawyer Thomas F. Maffei, of Griesinger, Tighe & Maffei in Boston, then appealed that award to the SJC.  Citing the size of the fees, the SJC remanded the case to the Probate & Family Court to hear evidence on whether they should be awarded.

'[A]t least some of the pretrial litigation activity … reasonably could be seen as unnecessary overlawyering in a case such as this, where the decedent’s entire estate was worth $1.2 million, and where on more than one occasion before trial, the trial judge made clear that she thought a trial would be necessary because of unresolved factual issues,' Botsford wrote.  Maffei called the decision a 'wake-up call.'  'When it comes to legal fees, reasonableness is still the test,' he tells Lawyers Weekly. 'Not every litigation is a ‘bet-the-company case.’"
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We talk about bad lawyers all the time, but this case highlights something I've said on Bad Lawyer since the outset, the real thieves get away with it all the time.  Their law firms have marbled foyers, antique furniture, and silver service.  Rarely are they caught out in full rapaciousness, as attorney Howard and K & L Gates--by the way, check their website.  Apparently these Massachusetts Judges didn't get an invite to the last firm soiree, oops.  

Here's betting, the attempted ransack of this estate by K & L Gates results in no disciplinary action.

The Astor Trial--Questions

The conviction of Anthony Marshall and his attorney pal, Francis Morrissey in the ransacking of Brooke Astor's estate ends one of the longest trials in recent history, at least for now. One wonders what if any appellate issues arise from such things as the reported jury strife. Check the Wall Stree Journal law blog which contains a further link to the NYT story. http://blogs.wsj.com/law/2009/10/08/breaking-astor-trial-concludes-anthony-marshall-convicted-of-theft/

I confess ignorance about Probate law so here's, my question: okay, Anthony Marshall is a freakin' hump, a worthless, scumbag, and his wife, Charlene a social climbing philistine; 'wasn't this money he was convicted of taking, ultimately his money in the end? Did Marshall just get convicted of stealing his own money? Wasn't he Brooke Astor's sole heir? Did New York just spend millions to prosecute a guy for stealing money he was inevitably going to inherit? Is something misguided about this?

The Lawyer forgery aspect of this is really appalling. Morrissey went to extraordinary lengths to forge codicils. It reminds me of a case from years ago--a bankruptcy lawyer I knew was administering an estate when a lawyer for a debtor contested a claim for some real estate claimed by the trustee. The lawyer produced a deed previously prepared and notarized by the attorney which the attorney claimed had not been filed but which purported to transfer the real estate out of the hands of the debtor years earlier. The only problem was the deed form itself, (yes, back in the old days we used printed forms from Legal Blank companies) bore a publication date of more recent vintage establishing irrebuttable proof of fraud by the lawyer. The lawyer killed himself when the fraud was discovered.