If the employer has the right to view the e-mails that were sent to the client at the place of employment, that could destroy the privilege. 

Randall Ryder reports for Lawyerist.com

"The California Court of Appeals recently found that a client’s e-mail to her attorney, regarding her plans to sue her employer, was not privileged. The court said her e-mail was the equivalent of consulting her attorney in her employer’s conference room using a loud voice and leaving the door open. Notably, this e-mail exchange occurred on the company’s servers, through the client’s work e-mail address.

In New Jersey, a court held that emails sent from a Gmail account, or another web-based account, were still private and confidential."

Read more here.

The New York Court of Appeals has broken new ground.  It has held that an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability.  The court held that a personal representative of an estate may maintain a legal malpractice claim for such pecuniary losses to the estate.  The case is Estate of Saul Schneider, Appellant, v Victor M. Finmann, et al., Respondents, New York Court of Appeals Opinion No. 104 (June 17, 2010), 2010 NY Slip Op 5281.

The case involved a $1 million life insurance policy that was included in the decedent’s estate for estate tax purposes.

Before this case, NY courts have applied a strict privity rule, that lawyers owe no duty of care to non-clients, and only a client may sue a lawyer for legal malpractice.   As the New York Appeals Court Jude pointed out, the application of the privity rule "leaves the estate with no recourse against an attorney who planned the estate negligently."  The opinion stated: "We now hold that privity, or a relationship sufficiently approaching privity, exists between the personal representative of an estate and the estate planning attorney."

Further:  "The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate," Judge Jones wrote. "The attorney estate planner surely knows that minimizing the tax burden of the estate is one of the central tasks entrusted to the professional."

The court made it clear, however, that strict privity should remain a bar against malpractice suits launched by estate beneficiaries or other third parties absent fraud claims or other special circumstances.

 I recommend that you read Steve Leimberg’s insightful comments on the case in his newsletter at LISI Estate Planning Newsletter # 1660 (June 19, 2010) at http://www.leimbergservices.com Copyright 2010 Leimberg Information Services, Inc. (LISI).

CIGNA refused to pay the death benefit on a life insurance policy claiming that the death was not a result of an accident.  They claimed the injury was self-inflicted, as the crash could reasonably have been anticipated to happen with an intoxicated driver.  No life insurance for you, Mrs. Firman.

The widow has brought a lawsuit since CIGNA denied the internal appeal. 

 As reported in the Houston Press:

"According to the lawsuit, CIGNA told Firman that since her husband "would have been aware of the risks involved in operating his vehicle while under the influence, his death was a foreseeable result of his actions and thus not an accident." CIGNA also told Firman that driving drunk is "conduct that must be deterred, apparently assuming a moral stance on this claim," the lawsuit states. In the end, Firman claims, CIGNA decided that since her husband was intoxicated, his death was the "result of intentionally self-inflicted injuries."

And if you have a heart attack because you are overweight, have high cholesterol and don’t exercise. . . . . . .

 Hat tip to J. Michael Young of Texas Probate Litigation and his blog post.


Thank you to Roy Newman of The San Diego Estate Center for his post, 8 Steps To Avoid Estate Litigation.

Newman reports:

"An article by the US News and World Report gives “8 Tips to Avoid Nasty Estate Surprises.”  I agree with most of the points, and add my critique after each tip below:

1. Get a good lawyer. I would add that your lawyer should concentrate exclusively in this area.
2. Pick the right executor and trustees. The right trustee will be solid and will react neutrally to avoid disputes over the estate’s property.
3. Talk about it now. This seems obvious, but most people will not let their intentions be known ahead of time. Unfair surprise is one surefire way to start a contest.
4. Know state laws. In California, as the Tax Professor adds, probate can be avoided entirely through the use of a trust.
5. Make your intentions known early and often. Making repeated modifications to the will or trust will make it harder to invalidate later.
6. Make sure title to your assets is clear. Circumventing the estate distribution by retitling assets later in life is another way to encourage litigation.
7. Consider including a “no contest” clause. Then give the beneficiary an amount that they would rather not sacrifice if they lost the contest.
8. Don’t try to manage your estate from the grave. Although I am not sure that I entirely agree with this one, in theory giving discretion to your beneficiaries may stop them from fighting over items to which they are personally attached. I agree that not every item need be listed in the instrument, but sometimes a person who writes a will or trust can avoid disputes ahead of time by simply making the right decision."

Whevener your estate ends up in litigation, only the lawyers win.  A good lawyer can help make sure youre state doesn’t turn into a modren day Jaryndyce v. Jarndyce.


Thomas Bucher, son of retired Lancaster County Court of Common Pleas Judge Wilson Bucher, died in July 2008.  It was a suicide.  His will gave the bulk of his estate to the Lancaster County Public Library – an estimated $1 million. We wrote about the case in an earlier blog post. 

Judge Joseph Rehkamp, the Perry County Judge who is hearing the case because of Lancaster County judges’ recusal, has dismissed Wilson Bucher’s motion for summary judgment ruling that while there’s no evidence his family was stealing from him, Thomas Bucher "had a strained relationship with his father and mother and siblings, and had expressed animus toward his brothers-in-law, particularly Steven R. Blair" — and that his suspicions did not amount to an "insane delusion." 

Judge Rehkamp stated in his opinion that Thomas Bucher "had a rational basis for willing his entire estate to a charity. . . . ""Despite the argument of Attorney Blair that Thomas Bucher had an insane delusion at the time he executed his will, none of the answers supplied by the scrivener of the will nor his associate indicate other than a rational mindset in willing his estate to the Lancaster Public Library." 

"There is, at minimum, a genuine dispute of material fact as to the state of the mind of the decedent [Thomas Bucher] to prevent the granting of a motion for summary judgment in this matter."

Read the Intelligencer Journal article about the ruling here.:  A Battle of Wills.

The article states:  "Both the office and the library had asked that Blair be disqualified as attorney for petitioner Wilson Bucher due to his close connection to the case. But Rehkamp ruled against those requests, saying that ‘this court is satisfied, upon review of the case file, under the circumstances of this matter, that [Blair] shall continue as attorney for petitioner.’"

There will be a hearing on the insane delusion claim.  Also, Steven Blair, attorney for Wilson Bucher has also raised a claim based on an oral contract to make a will. 

Stay tuned for Part 3.

This article on www.law.com  points out a gross inequity.  Estate planning attorneys can get away with murder.  Well,  not murder literally, but they get off scot-free when committing horrendous malpractice because of antiquated notions about privity.

In short, the common law view is that since the heirs and beneficiaries didn’t hire the lawyer to write the decedent’s estate plan, they can’t sue the lawyer for making mistakes.  There is no privity of contract.  And since the person who hired the lawyer is dead and isn’t going to be suing anyone, oh well, i guess there is just no remedy.

Its time for this to change.  All professionals should be responsible for the quality of their work — no exceptions.

The state law discussed in the article is New York.  Pennsylvania has a similar rule, except that in Pennsylvania, some headway can be made under third-party beneficiary  or negligence analysis.

About 18 years ago I was interviewing with the chair of a Trusts & Estates Department in a large Philadelphia firm.  I was new to Pennsylvania, having moved here from Boston.  He explained to me that estate planning was a great practice area because if you made mistakes, they weren’t found.  Since beneficiaries had no privity they couldn’t sue for malpractice.  I was appalled.  I explained, that as a matter of public policy, not to mention fairness and basic Justice, I did not think that was a good result.  I didn’t get the job.



Jury selection begins Monday March 30, 2009 for the trial of Anthony Marshall, Mrs. Astor’s son.  The trial is expected to last two months.

As reported in the New York Times, "Prosecutors will argue that Mr. Marshall and Mr. Morrissey knew that Mrs. Astor, suffering from Alzheimer’s disease, had deteriorated mentally, but that they exploited her ailments to trick her into directing millions of dollars their way, according to the indictment and lawyers briefed on the case. A second change to Mrs. Astor’s will, executed in January 2004, which gave Mr. Marshall her estate outright, will be under the most scrutiny."

We wrote earlier about the first Supreme Court ruling on Anna Nicole’s estate here  regarding the so-called "probate exception" to federal jurisdiction.

Here we go again.

A writ has been filed before SCOTUS asking that " lawyers for the late Anna Nicole Smith be allowed to start collecting on $88 million awarded her by a Santa Ana judge from her husband’s estate."

See Gerry Beyer’s post at Wills, Trusts & Estates Prof Blog discussing the writ.  Here is an excerpt:

"The writ, filed with the court [on March 9, 2009], asks in the alternative that the heirs of Smith’s husband, Texas oil tycoon J. Howard Marshall, post a bond in that amount to assure that the money is there when when the legal battle concludes. * * *

However, David Margulies, who represents the heirs of J. Howard Marshall and his son, E. Pierce Marshall * * * denied the award by U.S. District Judge David Carter in 2002 is still valid.

Margulies said the 9th U.S. Circuit Court of Appeals threw out Carter’s award, finding that he overstepped the jurisdiction of the Probate Court.

Even though the U.S. Supreme Court in 2006 found that Smith had the right to pursue a claim on her husband’s estate, it did not uphold the $88 million award, Margulies said."

Please read this excellent post by Juan Antunez at Florida Probate & Trust Litigation Blog:

Persuading a Cold Judge

Here is an excerpt:

"A defining characteristic of probate litigation is that your cases are decided by judges, no jury trials here. If your judge is prepared and understands the facts and law of your case, all is well. But when your judge is not prepared, or simply doesn’t "get" it, he’s what Denver, Colorado litigator Peter Bornstein refers to as a "cold" judge in Persuading a Cold Judge, an excellent article just published in the ABA’s Litigation magazine. Here’s how Bornstein frames the issue:"

And this is MOST interesting:

"So what’s to be done? One option is to "privatize" contested probate proceedings to the extent possible by tapping into one of the many alternative-dispute-resolution tools available under Florida law [click here]."




In September 2008 we wrote about John P. Karoly, Jr. the Allentown attorney who allegedly faked his brother’s will.

Turns out there’s more.   Read what the Taxgirl, Kelly Erb, has to say at Lawyer Fakes Will (Allegedly), Now Faces Tax Charges.

Here is an excerpt::

While Karoly fights the fake will charges, he has other charges brewing. He has also been accused of one count of mail fraud, three counts of failing to report taxable income on his federal income tax returns, one count of conspiracy to commit wire fraud, two counts of wire fraud, and six counts of money laundering charitable proceeds through a church.

Karoly allegedly failed to report more than $5 million in income for the years 2002, 2004 and 2005.

Karoly is also accused of claiming a charitable donation for a noncharitable contribution. In 2005, Karoly donated $500,000 to the nonprofit Lehigh Valley Community Foundation and took the deduction on his tax returns. He later asked that the money be transferred to the Urban Wilderness Foundation, which does not have tax-exempt status. The Urban Wilderness Foundation shared an address with Karoly’s law office, and Karoly had sole signature authority on the Urban Wilderness Foundation bank account.

No wonder they say that 99% of lawyers give the rest of us a bad name.