In Uncategorized on 09/15/2016 at 18:58

See my blogpost “Assigned Counsel? – Part Deux,” 1/28/16. Not to be outdone by ex-Ch J Michael B (“Iron Mike”) Thornton, who assigned IRS’ counsel to give legal advice to an unrepresented petitioner in a litigated matter (Rule 4.3 of the Rules of Professional Conduct, anyone?), Judge James S. (“Big Jim”) Halpern orders the attorney for the deceased petitioner, who only wants to bail, to “confer as to the status of this case.”

The case is Carl H. Freyer, Docket No. 25869-15, filed 9/15/16. And it’s a designated hitter.

Thanks, Judge, it’s been a long day.

Carl is gone, but spouse and adult son survive. Carl’s attorney, whom I’ll call Bill B, just wants out. Although Bill B thinks there may be a will naming spouse as executor, he thinks it hasn’t been offered for probate.

Judge Halpern says to Bill B, confer with IRS, spouse and son: “…at a reasonable date and time but no later than October 14, 2016, [spouse], [son], [Bill B], and respondent [IRS] shall confer at to the status of this case, including (1) whether decedent Carl H. Freyer’s estate has been or will be probated, (2) if decedent’s estate is being probated, whether an executor, administrator, or other duly appointed fiduciary has been appointed for decedent’s estate by a court of competent jurisdiction, (3) if so, the name and address of such duly appointed executor, administrator or other fiduciary for decedent’s estate, and (4) if decedent’s estate has not been or will not be probated, the names and addresses of decedent’s heirs at law.” Order, at p. 2.

And Bill B and IRS’ counsel to make report (preferably joint).

Now who is advising spouse and son? Because you know the first question spouse or son will ask is “Should we probate the will?” And the next is “Should we fight this case?”

Who answers these questions, thereby providing legal advice to wife or son or both?

Bill B? I suggest he can’t, as his deceased client’s interests may not be congruent with those of spouse or son or both of them. And Bill B may have client confidences he can’t reveal, and as to which his deceased client can no longer waive privilege. Moreover, neither spouse nor son has retained Bill B. Even if he could represent either, he cannot represent both.

IRS’ counsel? S/he has a worse conflict, as IRS, spouse and son are in an actually adversarial position.

And Judge Big Jim has nothing to say about letting Bill B out.

Takeaway—Counsel, my condolences if your client dies post-petition. For several reasons.


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