Probate Court Proceedings: Are You an Experienced Enough Attorney?
Probate court has jurisdiction over decedent’s estates, trusts, conservatorships, most minor’s proceedings such as guardianship ad litem, and name changes. Probate practice is a nice busy place for litigation paralegals. If an inexperienced attorney seeks to represent a client in a probate court proceeding, counsel has many options as discussed below.
There are many creative options available to the probate court legal practitioner where the attorney lacks the requisite years of experience and competence with the probate court and codes. A good probate court litigation paralegal can help pave the way. An attorney who lacks sufficient learning and skill to handle a matter “competently” must either decline the case or take one of the following steps:
- Associate another attorney reasonably believed to be competent in probate court; or
- Where appropriate, professionally consult with another attorney reasonably believed to be competent in probate court (this step is limited to cases in which mere consultation can “fill the gap” in the attorney’s learning or skill); or
- “Get Up to Speed” and gear up to handle the matter competently–i.e., acquire sufficient learning and skill before performance is required. (This is the Dean McAdams probate court method). Find some probate attorneys or paralegals to learn from. [See CRPC 3-110]
Duty to refer, associate or consult with “specialist”: An attorney who undertakes to represent a client on a matter that requires specialized knowledge or skill is held to the same standard of competence expected from attorneys who in fact have the requisite expertise. Thus, attorneys who lack this requisite knowledge and skill may be exposed to disciplinary action and/or malpractice liability–i.e., the failure to refer the client to, or associate or consult with, “competent” counsel may itself constitute professional negligence. [See Horne v. Peckham (1979)]
PROBATE COURT LEGAL PRACTICE GUIDE: Associating competent counsel is commonplace under appropriate circumstances and provided proper procedures are followed. Counsel often consider this approach as an alternative to declining a probate case they are not completely competent to handle, but cannot decline from a cash paying potential new client. Such assistance can be particularly useful where technical issues of estate and income taxation are involved or where litigation paralegals will be necessary. Experienced probate paralegals perform first and final accountings and other complex statutory accountings unique to trust and probate litigation.
Exception–“emergency legal advice”: Though not possessing the learning and skill ordinarily required to handle the matter competently, an attorney may give advice or assistance in an “emergency” where referral or consultation with another lawyer would be “impractical.” But such “emergency litigation advice” should be limited to that reasonably necessary under the circumstances.