From Roseanne Miller–when the judge says “you are required to have an attorney” that’s a lie

One of the basic tenants of American jurisprudence is the freedom to hire any lawyer your want, even starting as young as age 12, and not have anyone else interfere with that right.  You even have the right to NEVER hire a lawyer.

After listening to hundreds of stories and  complaints about lawyers from running this blog, I have to say I am utterly apalled at what is actually going on in Illinois, and since the ARDC is too busy running its own schemes and scams to protect corrupt lawyers (Seth Gillman who bilked Medicare and Medicaid some $100 million up until the very day he turned states evidence, and then there’s Jerome Larkin, Sharon Opryszek, Stephen Splitt and Melissa Smart who lied about this blog and tried to shut it down illegally–even to the tune of using an unlicensed court reporter, I say shame on you.)

After all this, who in their right mind would want to hire a lawyer. There is NO true regulation of them via the ARDC, that’s a govt. scam also.

So read the decision in this case:

http://sc.ohio.gov/rod/docs/pdf/7/2007/2007-Ohio-3038.pdf

I know for a fact Judge Riley was telling litigants they “must” get a lawyer, and Judge Malone.  Stop that nonsense.

And if you write to Tim Evans and complain, he just tells people to get a lawyer when people complain HE is not doing his job and taking complaints about the judges seriously.

Here are the important excerpts from this case:

Appellants are correct. The Ohio Supreme Court has clearly ruled on this issue: “It cannot be questioned that an executor has the right to employ counsel to assist in the performance of various duties in the administration of an estate. The employment of counsel, however, is not mandatory as the executor may perform all such duties.” In re Estate of Deardoff (1984), 10 Ohio St.3d 108, 108, 461 N.E.2d 1292. The Supreme Court’s logic is apparent from the wording of R.C. 2109.03, which states that a fiduciary (which includes an executor) must identify an attorney “if any” who will represent him or her. The phrase “if any” clearly indicates that the retention of counsel is discretionary. Other courts have noted that “it is well settled that executors and administrators have discretion in selecting counsel to represent them in their role as fiduciary.” In re Estate of Craig (1993), 89 Ohio App.3d 80, 83, 623 N.E.2d 620. Since the executor, administrator, or personal representative has the option whether or not to employ counsel, the probate court cannot refuse to issue letters of administration simply because the person does not choose to retain the services of an attorney. {¶29} In general, a probate court’s decision regarding the granting of letters of administration in an estate is reviewed for abuse of the court’s discretion. In re Estate of Henne (1981), 66 Ohio St.2d 232, 421 N.E.2d 506. A court abuses its discretion when its decision is arbitrary, unreasonable, or unconscionable. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 320, 574 N.E.2d 1055. Furthermore, abuse of discretion “connotes more than an error of judgment; it implies a decision which is without a reasonable basis, one which is clearly wrong.” Angelkovski v. Buckeye Potato Chips Co., Inc. (1983), 11 Ohio App.3d 159, 463 N.E.2d 1280, paragraph three of the -12- syllabus. If a court enforces a local court rule or policy that is diametrically opposed to clear Ohio State Supreme Court caselaw and statutory law, that would constitute an abuse of discretion. {¶30} From the outset, it is clear that even though various officers of the probate court referred to a local rule that required the fiduciary to obtain the services of counsel, we have not been able to locate any such rule in the published local rules of the Mahoning County Court of Common Pleas, Probate Division. One of the probate court magistrates stated that this was actually an unwritten policy rather than a written rule. In a recent case that also involved the Mahoning County Court of Common Pleas, Probate Division, this court held that the probate court could not rely on unwritten local rules to govern its affairs: “[T]here is no provision in the Rules of Superintendence for purely oral local rules. Sup.R. 5(A)(1) does allow courts to adopt written local rules of practice that do not conflict with other rules established by the Ohio Supreme Court. Sup.R. 5 also provides for a hearing and appropriate notice of the rule, and filing the rule with the Supreme Court. Obviously, if the rules must be filed with the Supreme Court, they must be written.” In re Estate of Traylor, 7th Dist. Nos. 03 MA 253, 03 MA 254, 03 MA 255, 03 MA 256, 03 MA 257, 03 MA 258, 03 MA 259, and 03 MA 262, 2004-Ohio-6504, ¶19, {¶31} This court has also ruled that the Mahoning County Court of Common Pleas, Probate Division, cannot attempt to expand its powers through the use of local rules that conflict with state law. In re Testamentary Trust Created Under Last Will & Testament of Ford, 7th Dist. Nos. 04 MA 255 and 04 MA 256, 2005-Ohio-5121. -13- {¶32} Part of the court’s rationale for requiring Norman C., as executor, to obtain the services of an attorney was to ensure that all the beneficiaries could be represented by counsel, rather than allowing the fiduciary to try to represent them in an unauthorized manner. There is some basis for the probate judge to be concerned about the unauthorized practice of law in this context, as R.C. 2109.03 specifically mentions the subject: “No probate judge shall permit any person to practice law in the probate court for compensation, unless he has been admitted to the practice of law within the state.” Yet the very next sentence in R.C. 2109.03 states: “This section does not prevent any person from representing his own interest in any estate, matter, action, or proceeding.” It should be apparent that representing one’s own interest, as a fiduciary, beneficiary, or in some other capacity in probate proceedings, does not automatically equate with practicing law. {¶33} The record here reflects a fundamental misunderstanding of the function of a fiduciary and the role of the fiduciary’s attorney in a testamentary estate. It is axiomatic that the position of executor and the position of attorney for the estate are two completely distinct offices and perform distinct functions in a probate estate. In re Estate of Duffy, 148 Ohio App.3d 574, 2002-Ohio-3844, 774 N.E.2d 344, ¶7. {¶34} In re Deardoff states: “R.C. 2109.03 provides that upon court appointment, the fiduciary has discretion to select counsel who will represent him during the administration of the estate. Under this statutory scheme, it is important to note that the attorney represents the fiduciary, not the estate.” Deardoff, 10 Ohio St.3d at 109, 461 N.E.2d 1292. Since the attorney represents the fiduciary and not the beneficiaries, -14- it does not matter how many beneficiaries there are, or who they are. The trial court’s apparent view that fiduciaries necessarily act as attorneys and its presumption that the fiduciary’s attorney necessarily represents the beneficiaries seem to underscore some serious difficulties in the practice of the probate court. {¶35} An executor, administrator, or other personal representative of a testamentary estate is a fiduciary, not an attorney. R.C. 2109.01 defines a “fiduciary” as “any person * * * appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another.” A fiduciary relationship is “one in which special confidence and trust is reposed in the integrity and fidelity of another, resulting in a position of superiority or influence acquired by virtue of the special trust.” Laurel Valley Oil Co. v. 76 Lubricants Co., 154 Ohio App.3d 512, 2003-Ohio-5163, 797 N.E.2d 1033, ¶40. The fiduciary duties of an executor are primarily to collect the estate assets, pay debts, and make distributions. The executor also owes various duties to the beneficiaries of the estate, duties involving keeping proper accounts, giving timely notice, preserving assets, and avoiding the commingling of property, as well as basic duties of trust and loyalty. Purposefully absent from this list of fiduciary duties is the duty to give legal advice, because that is the exclusive province of those duly admitted to the legal profession. Pietz v. Toledo Trust Co. (1989), 63 Ohio App.3d 17, 24, 577 N.E.2d 1118. {¶36} We cannot deny that a fiduciary may be tempted at times to disobey the law by giving legal advice. Green v. Huntington Natl. Bank, 4 Ohio St.2d 78, 212 -15- N.E.2d 585, paragraph two of the syllabus. Nevertheless, a fiduciary does not engage in the unauthorized practice of law simply by performing the functions and duties of a fiduciary, even though those functions and duties are sometimes similar to those performed by attorneys at law. Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd. of Revision, 111 Ohio St.3d 367, 2006-Ohio-5852, 856 N.E.2d 926, ¶8; see, also, Green, 4 Ohio St.2d at 81, 212 N.E.2d 585; Judd v. City Trust & Sav. Bank (1937), 133 Ohio St. 81, 12 N.E.2d 288, paragraph three of the syllabus. Nor could the probate court simply assume that Norman C. necessarily would be practicing law by acting as executor. The judge had no legitimate reason for rejecting the application to administer the estate on the basis of unauthorized practice of law. {¶37} Appellants’ second argument is that the probate court erred in requiring a bond in all cases because Ohio law does not always require a bond in every probate estate, particularly when the will waives the bond requirement. Once again, appellants are correct, although some explanation is in order. R.C. 2109.04(A) states: {¶38} “(1) Unless otherwise provided by law, every fiduciary, prior to the issuance of his letters as provided by section 2109.02 of the Revised Code, shall file in the probate court in which the letters are to be issued a bond with a penal sum in such amount as may be fixed by the court, but in no event less than double the probable value of the personal estate and of the annual real estate rentals which will come into such person’s hands as a fiduciary. * * * {¶39} “(2) Except as otherwise provided in this division, if the instrument creating the trust dispenses with the giving of a bond, the court shall appoint a fiduciary -16- without bond, unless the court is of the opinion that the interest of the trust demands it. If the court is of that opinion, it may require bond to be given in any amount it fixes.” (Emphasis added.) {¶40} According to the statute, a bond is generally required unless the “instrument creating the trust,” which in this case is the decedent’s will, dispenses with the bond requirement. If the will does not require a bond, then the court “shall appoint a fiduciary without bond, unless the court is of the opinion that the interest of the trust demands it.” The word “shall” in a statute normally refers to a mandatory duty. Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834, paragraph one of the syllabus. Therefore, if the will does not require a bond, the presumption is that the court will not order a bond, unless it specifically finds that other factors necessitate a bond. Even under those circumstances, the bond amount would be discretionary with the court. {¶41} We are mystified, to say the least, why the probate court would have a policy or unwritten rule that bond is required in absolutely every probate case when the aforementioned statutes clearly indicate that no bond is required when the will dispenses with the bond. {¶42} There may be an indication in the record that Norman J. Usiak’s probate estate was estimated to be worth $95,000, and the court may have imposed double this amount as a bond. There is no indication that the court considered any factor in imposing this amount other than its own presumed rule that there must always be a bond posted. Although the probate court specifically says it relied on a local rule -17- requiring a bond in all such cases, we have not been able to locate this local rule, and if there were such a rule, it would conflict with R.C. 2109.04(A)(2). The probate court cannot automatically impose a bond when the clear statutory requirement is for the court to waive the bond requirement if the will waives the need for a bond. The only reason for imposing a bond in such situations is if the court makes a finding that the “interest of the trust demands” a bond. R.C. 2109.04. The probate court cannot artificially create this demand by simply having an unwritten rule that bond is always required. {¶43} It appears that the probate judge was concerned because Norman C. was not a resident of Ohio and believed that this fact gave rise to a bond requirement. R.C. 2109.21(B)(1) states: {¶44} “(B)(1) To qualify for appointment as executor or trustee, an executor or a trustee named in a will or nominated in accordance with any power of nomination conferred in a will, may be a resident of this state or, as provided in this division, a nonresident of this state. To qualify for appointment, a nonresident executor or trustee named in, or nominated pursuant to, a will shall be an individual who is related to the maker of the will by consanguinity or affinity, or a person who resides in a state that has statutes or rules that authorize the appointment of a nonresident person who is not related to the maker of a will by consanguinity or affinity, as an executor or trustee when named in, or nominated pursuant to, a will. No such executor or trustee shall be refused appointment or removed solely because the executor or trustee is not a resident of this state. -18- {¶45} “The court may require that a nonresident executor or trustee named in, or nominated pursuant to, a will assure that all of the assets of the decedent that are in the county at the time of the death of the decedent will remain in the county until distribution or until the court determines that the assets may be removed from the county.” {¶46} The statute clearly allows for out-of-state executors and specifically states that letters of administration cannot be denied simply because the executor does not reside in Ohio. The statute allows the court to demand an assurance that all the decedent’s assets will remain in Ohio, and Norman C. gave that assurance. The probate court’s insistence that there was some local rule with more severe bond requirements for out-of-state executors is contradicted by the court’s local rules themselves. Loc.R. 78.7(C) merely says that a bond “may” be required for an out-ofstate executor or fiduciary, not that a bond must be imposed.

Advertisements

2 thoughts on “From Roseanne Miller–when the judge says “you are required to have an attorney” that’s a lie

  1. They do the same thing In beaufort sc . If you want one ( lawyer) they say you can’t (judges) if you say you don’t they say you have too . If we all sued judges or banned together this could be fixed . At least I hope . I’m dealing with another case now with the same issue . I’m so sorry

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s