Baker Manock & Jensen v. Superior Court, 175 Cal. App. 4th 1414, 96 Cal. Rptr. 3d 785 (2009)

Brief Summary
A law firm that drafted a will did not have a conflict of interest in later representing both an executor and a beneficiary of that will against another beneficiary because the former two parties had aligned interests and the latter party was not a client.

Complete Summary
Law firm Baker Manock & Jensen drafted a will for Lillian Salwasser, which created a trust for two of her sons, George and Gary, but omitted her other two sons, Marvin and Denis. Upon Salwasser’s death, Baker Manock represented one son, George, who was a co-executor of the will along with Gary. Salwasser’s will left the rest of her property to her husband, Walter, who died shortly after her will was probated.

The couple’s son Marvin served as the executor of Walter’s will. Denis, the fourth son, died shortly after Walter. Marvin applied for a determination of ownership of his parents’ community property. George argued that Marvin’s application violated the no-contest clause in their mother’s will. In response, Marvin petitioned to disqualify Baker Manock for having conflicts of interest. Marvin alleged three conflicts: (1) between George as a beneficiary and George as an executor; (2) between George as a beneficiary and the other beneficiaries, and (3) between the beneficiaries and Baker Manock as the drafter of the will. The trial court granted Marvin’s petition, and Baker Manock petitioned for a writ of mandate.

The appellate court granted the writ, noting that, because the trial court’s order was based on an error of law, the court’s discretion was not entitled to deference. First, the appellate court held there was no divergence of interest between George as an executor and George as a beneficiary. Second, because George’s opposition to Marvin’s application was for purposes of preserving the assets of Salwasser’s estate, George’s actions were in line with the beneficiaries’ interests. Moreover, even when the executor advocates a certain dispository scheme under the will, such advocacy is in line with the executor’s duty to assist the court in interpretation of the will, the court held. Third, although the drafter of a will may be liable to third party beneficiaries for negligent drafting, the court held there is no attorney-client relationship between the drafter and the beneficiaries, and therefore no possibility of a conflict of interest.

Significance of Opinion
Because probate proceedings often involve many divergent parties and interests, they are potentially fruitful breeding grounds for conflicts. The court dealt with this seemingly complex fact pattern by reducing it to a simple question: did Baker Manock represent clients on two sides of an issue in the same matter? The court found the clear answer to be that Baker Manock did not.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship

Register Today for the 8th Annual Law Firm General Counsel Forum: Risk Management in Troubled Times

Presented by Hinshaw & Culbertson LLP, The Hildebrandt Institute and WestLegalEdCenter

Date: December 2-3, 2009

Location

Thomson Reuters
Thomson Hall, 4th Floor
195 Broadway
New York, NY

Who Should Attend?

• Law Firm General Counsel
• Chief Human Resources Directors
• Chief Compliance Officers
• Human Resources Professionals
• Risk Management Partners

Register

Space is limited so register early by contacting WestLegalEdCenter at 1-800-241-0214 or by clicking on the link below. Provide offer code 000000.
http://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=19390351&sc_cid=ws_hild

Topics Include

• Managing opportunities and risks in the current economy
• The evolving role of the general counsel
• Risks of disagreeing litigation services
• Implications of abandoning the hourly fee
• Legal issues surrounding laterals

Fee and Discounts

$1,495 for Law Firm Registration

5,000 for Non-Law Firm and Non-Corporate Law Department Registration (Insurance Professionals: Mention Hinshaw to Receive Law Firm Rate of $1,495)

Receive a 10% discount off the registration fee for all participants if you send three or more people from the same organization to the Forum.

CLE Credit

States have widely varying regulations regarding MCLE credit. Please note that some jurisdictions do not accredit Law Practice Management programs. WestLegalEdCenter is an approved provider in AK, CA, GA, IL, ME, MO, ND, NV, NY, OK, SC, VT and WV. Credit may be applied for in additional jurisdictions upon request and in accordance with state MCLE rules

REGISTER NOW for the Ninth Annual Legal Malpractice & Risk Management Conference and receive a 10% Early Bird Discount before December 1, 2009

Attend the industry's premier annual event focused on current and important developments in the law and litigation of malpractice claims, legal malpractice insurance and risk management strategies. Each conference panel examines recent case law and significant developments throughout the last year. One and one-half days will be devoted to legal malpractice (March 3-4), and one and one-half days will be devoted to risk management (March 4-5). The conference will be held in Chicago at The Westin Chicago River North Hotel.

Earn up to 15 hours of CLE credit, including up to 6.50 ethics credit!

Conference Topics

Legal Malpractice Sessions (March 3-4)

• Standing to Sue, Privity and Duty of Disclosure
• Litigation/Litigation Attorney
• What's Your Little Secret? They Want to Know
• Judgmental Immunity — A Modern Look at the Legal Profession's Oldest Defense 
• Insurance Coverage Update: The Year in Review – Prior Knowledge Redux and the Definition of Professional Services
• 2009 LMRM Case Updates and Statutory Causes of Action
• Stump the Panel

Legal Malpractice/Risk Management Cross-Over Sessions (March 4)

• The Insurance Marketplace and Considerations
• Who is the Client and Standing to Sue – Successor Entities, Affiliates and Subsidiaries
• Advance Conflict Waivers, Screening and How to Do It

Risk Management Sessions (March 4-5)

• The General Counsel Forum
• Suits for Fees/Mandatory Fee Arbitration
• Risk Management Considerations in Restructuring and Winding-Up Law Firms
• Managing Client and Law Firm Data, and What Gives When Client and Firm Policies Conflict?
• On the Horizon – The Slow Motion Revolution

Registration Fees

$1,300 for the Entire Conference - March 3-5
$925 for the Legal Malpractice Sessions Only - March 3-4
$925 for the Risk Management Sessions Only - March 4-5

Discounts (maximum 15% discount per registration)

Returning registrants receive 5% off the conference price
Multiple registrants receive 15% off when two or more colleagues from the same company register for the conference
Early birds receive 10% until December 1, 2009

For more information, please visit www.LMRM.com or click here to Register Now!

To speak with the Conference Planner, Katherine McCormack, please call 312-704-3329.