QUESTION
Are verbal and written agreements between attorneys binding and can be enforced?
Asked on Dec 06th, 2013 on Estate Planning - Nebraska
More details to this question:
A trustee/beneficiary of a discretionary support trust in California petitions the probate court to have her actions and accounting approved for the period since she became trustee, and for instructions as to which amendment to the trust she should follow. There had been some controversy as to the validity of Amendment No. 2 due to the timing of its execution, and she wasn’t sure if she should be following Amendment No. 1 instead. All six remaining beneficiaries believe Amendment 2 should be held valid even if it was executed improperly. One of those beneficiaries hires you to persuade the court that Amendment No. 2 should be held valid. You notify the trustee’s attorney that the remaining beneficiary’s all support Amendment No. 2. He replies that the trustee will agree to a joint petition to use Amendment No. 2 if your client collects all of the remaining beneficiary’s signatures. The trustee then signs her agreement to the joint petition, under penalty of perjury, and you receive it in the mail. Your client collects the remaining six signatures, and you file the joint petition with the court for a ruling at the upcoming hearing. You pay the filing fees for your client and five other beneficiaries ($2,200) from your client’s retainer. The next day the trustee’s attorney sends you a settlement proposal from the trustee. It requires your client to agree to exonerate the trustee for all of her past actions, even for the period before she became trustee when she unofficially managed trust assets for the surviving spouse. Your client must also agree to a fixed monthly distribution amount rather than relying on the discretionary terms from the trust. He states that if your client does not agree to these terms the trustee will withdraw her agreement to your client’s joint petition to use Amendment No. 2. Your client believes the trustee embezzled funds before she officially became trustee and does not want to exonerate her for that period.
8 ANSWERS
This sounds like a law school question. It is not our function to answer such questions.
Answered on Dec 13th, 2013 at 2:21 AM
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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If she already agreed to it, her withdrawal is likely to arouse suspicion by the judge, I would think. I would call her bluff and see if she actually withdraws her stipulation to abide by the 2nd amendment. If she does, maybe you can save the filing fees by converting the proceeding to one to compel an account.
Answered on Dec 11th, 2013 at 4:15 AM
2 Awards
Don't agree to it. The joint petition has already been filed. Use that and let the court decide. Send discovery and subpoena bank records from accounts that you believe may have been embezzled from.
Answered on Dec 09th, 2013 at 8:00 PM
Yes, agreements between attorneys and nonclients are as binding as those between any other pair of people. However, when an attorney is acting on behalf of a client, the attorney cannot bind the client to an agreement without the client's permission. If you don't like what the trustee is offering, you can negotiate the terms to limit or eliminate things like the exoneration. Or you can allow the court to make the decision based on the document you already submitted.
Answered on Dec 09th, 2013 at 8:00 PM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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If your question is whether the "agreement" is enforceable in terms of contract law, then the answer is "it is unclear." In any event, you aren't going to sue for breach of contract here. If the "agreement" is simply a "division of labor" to get the petition filed, moreover, then you may not even have a real contract argument. From a practical standpoint, the beneficiaries are put to the choice. They can let the trustee withdraw and let the court decide whether Amendment 2 is valid. Or, they can negotiate a deal with the Trustee to maintain her approval. It also is not clear if the Trustee now intends to fight the petition, or to simply stand neutral. In any event, the real issue is the validity of Amendment 2, and not whether the Trustee is trying to renege on a contract. The beneficiaries need experienced trust counsel here, to investigate and (if appropriate) pursue the purported claim of wrongdoing by the trustee.
Answered on Dec 09th, 2013 at 8:00 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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In light of the length of the question and the many issues you are raising, you are advised to obtain the services of a probate/trust litigation attorney to assist you.
Answered on Dec 09th, 2013 at 8:00 PM
3 Awards
This forum is intended to advise you if you need an attorney. It sounds like you have one and may want a second opinion. You need to consult counsel who reviews everything. You should pay for this service to make sure the attorney providing the opinion fully understands all issues. This is not the type of issue handled in a free or initial consultation. You are basically seeking an opinion letter on an issue. Expect that it will take a few hours of attorney time to assess and advise. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Dec 09th, 2013 at 8:00 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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I believe you have posted on these facts before. You appear to be represented by counsel, so your attorney is the person you need to address these questions to. It is not ethical for an attorney to advise you when you already have legal counsel. The particular facts of your case are likely to dictate the result, as well as the discretion of the judge.
Answered on Dec 09th, 2013 at 8:00 PM