Probate - Ohio State Bar Association

Transcription

2016 All-Ohio Legal Forum
View from the Bench: Probate
Video Replay
1.5 General CLE Hours
April 27 – April 29, 2016 ♦ Cincinnati
Speaker Biographies
T. Todd Book
Director of Policy and Government Affairs
Ohio State Bar Association
Columbus, Ohio
Mr. Book received his BA in political science from Western Michigan University and is JD from the College of
William and Mary, Marshall-Wythe School of Law. His professional experience includes: an 8-year term as the
representative for the 89th District in the Ohio House of Representatives; practicing attorney for 20 years;
being the managing member for 11 years of the law firm Harcha, Book & Beck LLC; Economic Development
Director for Scioto County, Ohio; adjunct professor at Shawnee State University and The Ohio State University,
Southern Campus.
Honorable Richard P. Carey
Clark County Probate Court
Springfield, Ohio
After graduating from the University of Notre Dame and the Ohio Northern University Claude W. Pettit College
of Law and retiring from cage fighting and the TV series “Glee” – where you may remember him as the singing
bus mechanic – Judge Carey settled in as an assistant prosecuting attorney for 8 years, a municipal court judge
for 10 years, and is beginning his third term as the Probate Judge for Clark County. Raising six children, his
favorite song: is “I Know What I Was Feeling; But What Was I Thinking!” Judge Carey relaxes by performing
with the Irish pub band, Mulligan Stew, and the Christian rock band, the Richard Carey Project, and coaching
high school sports.
Honorable Laura J. Gallagher
Cuyahoga County Probate Court
Cleveland, Ohio
Judge Gallagher is in her second term as judge of the Probate Court for Cuyahoga County. Her service on the
bench is the culmination of 28 years of public service, including serving as an assistant county prosecutor in
both Cuyahoga and Medina Counties and as a magistrate and court administrator in the Medina County
Probate Court. Judge Gallagher is Chair of the Ohio Supreme Court Commission on Courts and Technology and
a member of the Supreme Court Advisory Committee on Case Management. She is second vice president of
the Ohio Association of Probate Judges Executive Committee and serves on the Ohio Judicial Conference Law
and Procedure Committee, as well as the Probate Forms Committee. Judge Gallagher serves on the Boards of
the Lawyers Guild, the Jesuit Retreat House, and the Incarnate Word Academy.
Honorable Jan Michael Long
Pickaway County Probate/Juvenile Court
Circleville, Ohio
Honorable Jack R. Puffenberger
Lucas County Probate Court
Toledo, Ohio
Judge Puffenberger received his BA from Kent State University, his MS from Youngstown State University, and
his JD from The University of Toledo College of Law. His professional memberships include the Ohio State Bar
Association, American Judicature Society, Toledo Women’s Bar Association, American Bar Association,
National College of Probate Judges, Toledo Bar Association, and Lucas County Bar Association. Judge
Puffenberger is a frequent lecturer for numerous organizations. He is the recipient of the American
Jurisprudence Award for Legal Academic Achievement in the field of Constitutional Law and the Ohio Probate
Judges Association Meritorious Service Award in 2002.
Honorable James T. Walther
Lorain County Probate Court
Elyria, Ohio
Probate Panel
Moderator:
T. Todd Book
Ohio State Bar Association
Columbus, Ohio
Panelists:
Honorable Laura Gallagher
Cuyahoga County Probate Court
Cleveland, Ohio
Honorable Jack Puffenberger
Lucas County Probate Court
Toledo, Ohio
Honorable Richard P. Carey
Springfield, Ohio
Honorable James T. Walther
Lorain County Probate Court
Elyria, Ohio
Honorable Jan Michael Long
Pickaway County Probate/Juvenile Court
Circleville, Ohio
Table of Contents
Amendments to the Supreme Court Rules of Superintendence for the Courts of Ohio ............... 1
Rule 66.01. Definitions.............................................................................................................. 1
Rule 66.02. Application of Rules ............................................................................................... 2
Rule 66.03. Local Guardianship Rule ........................................................................................ 2
Rule 66.04. Establishment of Guardianship ............................................................................. 3
Rule 66.05. Responsibilities of Court Establishing Guardianships ........................................... 3
Rule 66.06. Guardian Pre-Appointment Education. ................................................................. 4
Rule 66.07. Guardian Continuing Education ............................................................................ 5
Rule 66.08. General Responsibilities of Guardian .................................................................... 5
Rule 66.09. Responsibilities of Guardian Ward ........................................................................ 8
Rule 73. Guardian’s Compensation ........................................................................................ 10
Rule 99. Effective Date ........................................................................................................... 11
Current Probate Issues: Same-Sex Marriage and Rule 66 ............................................................ 13
I. Same-Sex Marriage – Introduction and Background........................................................... 13
II. Ohio Rule of Superintendence Rule 66............................................................................... 14
Guardianships – Ohio’s New Adult Guardianship Rules – PowerPoint Presentation .................. 17
Probate Panel • i
Attorney Fees................................................................................................................................ 39
Rules of Professional Conduct ................................................................................................ 39
Superintendence Rule 71 ....................................................................................................... 39
What Is Reasonable? .............................................................................................................. 40
Case Study............................................................................................................................... 41
Extraordinary Fee Form .......................................................................................................... 41
Attorney Fee for Attorneys Hired by Heirs Who Are Not the Administrators ....................... 42
2015 View from the Bench Seminar – PowerPoint Presentation ................................................ 43
ii • View from the Bench: Probate
AMENDMENTS TO THE SUPREME COURT
RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO
The following amendments to the Rules of Superintendence for the Courts of Ohio (new
Sup.R. 66.01 through 66.09 and amended Sup.R. 73) were adopted by the Supreme Court of
Ohio. The history of these amendments is as follows:
May 26, 2014
March 10, 2015
June 1, 2015
Published for public comment
Final adoption by conference
Effective date of amendments
RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO
RULE 66.01.
Definitions.
As used in Sup.R. 66.01 through 66.09:
(A)
Best interest
“Best interest” means the course of action that maximizes what is best for a ward,
including consideration of the least intrusive, most normalizing, and least restrictive
course of action possible given the needs of the ward.
(B)
Direct services
“Direct services” means services typically provided by home and community-based care
and institutionally-based care providers, including medical and nursing care, care or case
management services, care coordination, speech therapy, occupational therapy, physical
therapy, psychological services, counseling, residential, legal representation, job training,
and any other similar services. The term “direct services” does not include services of a
guardian.
(C)
Guardian
“Guardian” has the same meaning as in R.C. 2111.01(A).
(D)
Ward
“Ward” means any adult person found by the probate division of a court of common
pleas to be incompetent and for whom a guardianship is established.
(E)
Guardianship services
“Guardianship services” means the duties assigned to a guardian in an adult guardianship
case pursuant to R.C. Chapters 2109 and 2111.
Probate Panel • 1
RULE 66.02.
(A)
Application of Rules.
General
Sup.R. 66.01 through 66.09 shall apply in an adult guardianship case where the probate
division of a court of common pleas appoints a guardian to protect and control a ward
pursuant to R.C. 2111.02, provided the appointing court for good cause may, by order of
the court, exempt a guardian who is related to the ward by consanguinity or affinity.
(B)
Corporation as guardian
Sup.R. 66.01 through 66.09 shall apply to the employees of a corporation who provide
guardianship services in an adult guardianship case where the probate division of a court
of common pleas appoints the corporation as guardian.
RULE 66.03.
Local Guardianship Rule.
The probate division of a court of common pleas that establishes guardianships shall adopt local
rules governing the establishment of guardianships that do all of the following:
(A)
Establish a process for emergency guardianships;
(B)
Establish a process for submitting in electronic format or hard copy comments
and complaints regarding the performance of guardians appointed by the court and for
considering such comments and complaints. The process shall include each of the
following:
(1)
The designation of a person for accepting and considering comments and
complaints;
(2)
A requirement that a copy of the submitted comment or complaint be
provided to the guardian who is the subject of the comment or complaint;
(3)
A requirement that the court give prompt consideration to the comment or
complaint and take appropriate action;
(4)
A requirement that the court maintain a record regarding the nature and
disposition of the comment or complaint;
(5)
A requirement that the court notify the person making the comment or
complaint and the guardian of the disposition of the comment or complaint.
(C)
Addresses other provisions as the court considers necessary and appropriate,
including but not limited to indicating where filed comments and complaints will be kept.
RULE 66.04.
(A)
Establishment of Guardianship.
Scope of guardianship
When establishing a guardianship, the probate division of a court of common pleas shall
consider a limited guardianship before establishing a plenary guardianship.
(B)
County of residence
The last county of residence in Ohio in which a ward resided prior to losing the cognitive
ability to choose shall be the ward’s county of residence for purposes of establishing a
guardianship, unless determined otherwise by the probate division of the court of
common pleas establishing the guardianship.
(C)
Guardianship of estate
The probate division of a court of common pleas may waive establishing or continuing
the guardianship of the estate of a ward if the assets and principal income of the ward do
not support a guardianship of the estate.
(D)
Restrictions on direct service providers
The probate division of a court of common pleas shall not issue letters of guardianship to
any direct service provider to serve as a guardian for a ward for whom the provider
provides direct services, unless otherwise authorized by law.
RULE 66.05.
(A)
Responsibilities of Court Establishing Guardianships.
General responsibilities
The probate division of a court of common pleas that establishes a guardianship shall do
both of the following:
(1)
Conduct, or cause to be conducted, a criminal background check. If the
applicant to serve as a guardian is an attorney, the court may accept a certificate
of good standing with disciplinary information issued by the Supreme Court in
place of a criminal background check.
(2)
Require each guardian appointed by the court to submit to the court
information documenting compliance with the guardian qualifications pursuant to
Sup.R. 66.06 or 66.07, as applicable.
Probate Panel • 3
(B)
Responsibilities regarding guardians with ten or more wards
The probate division of a court of common pleas shall do all of the following with respect
to guardians with ten or more wards under the guardian’s care:
(1)
Maintain a roster, including the name, address, telephone number, and
electronic mail address, of the guardians. The court shall require the guardians to
notify the court of any changes to this information.
(2)
Require the guardians to include in the guardian’s report a certification
stating that the guardian is unaware of any circumstances that may disqualify the
guardian from serving as a guardian;
(3)
Require the guardians to submit to the court an annual fee schedule that
differentiates guardianship services fees, as established pursuant to local rule,
from legal or other direct services;
(4)
On or before March 1st of each year, review the roster of guardians to
determine if the guardians are in compliance with the education requirements of
Sup.R. 66.06 or 66.07, as applicable, and that the guardians are otherwise
qualified to serve.
RULE 66.06.
(A)
Guardian Pre-Appointment Education.
Requirement
Except as provided in division (B) of this rule, the probate division of a court of common
pleas shall not appoint an individual as a guardian unless, at the time of appointment or
within six months thereafter, the individual has successfully completed, at a minimum, a
six-hour guardian fundamentals course provided by the Supreme Court or, with the prior
approval of the appointing court, another entity. The fundamentals course shall include,
at a minimum, education on the following topics:
(B)
(1)
Establishing the guardianship;
(2)
The ongoing duties and responsibilities of a guardian;
(3)
Record keeping and reporting duties of a guardian;
(4)
Any other topic that concerns improving the quality of the life of a ward.
Exception
An individual serving as a guardian on June 1, 2015, or who served as a guardian during
the five years immediately preceding that date shall have until June 1, 2016, to complete
the training required under division (A) of this rule unless the appointing court waives or
extends the requirement for good cause.
RULE 66.07.
(A)
Guardian Continuing Education.
Requirement
In each succeeding year following completion of the requirement of Sup.R. 66.06, a
guardian appointed by the probate division of a court of common pleas shall successfully
complete a continuing education course that meets all of the following requirements:
(1)
Is at least three hours in length;
(2)
Is provided by the Supreme Court or, with the prior approval of the
appointing court, another entity;
(3)
Is specifically designed for continuing education needs of guardians and
consists of advanced education relating to the topics listed in Sup.R. 66.06(A)(1)
through (4).
(B)
Annual compliance
On or before January 1st of each year, a guardian shall report to each probate division of
a court of common pleas from which the guardian receives appointments information
documenting compliance with the continuing education requirement pursuant to division
(A) of this rule, including the title, date, location, and provider of the education or a
certificate of completion.
(C)
Failure to comply
If a guardian fails to comply with the continuing education requirement of division (A) of
this rule, the guardian shall not be eligible for new appointments to serve as a guardian
until the requirement is satisfied. If the deficiency in continuing education is more than
three calendar years, the guardian shall complete, at a minimum, a six-hour fundamentals
course pursuant to Sup.R. 66.06(A) to qualify again to serve as a guardian.
RULE 66.08.
(A)
General Responsibilities of Guardian.
Orders, rules, and laws
A guardian shall obey all orders of the probate division of a court of common pleas
establishing the guardianship and shall perform duties in accordance with local rules and
state and federal law governing guardianships.
Probate Panel • 5
(B)
Pre-appointment meeting
Unless otherwise determined by the probate division of a court of common pleas, an
applicant guardian shall meet with a proposed ward at least once prior to appearing
before the court for a guardianship appointment.
(C)
Reporting abuse, neglect, or exploitation
A guardian shall immediately report to the probate division of a court of common pleas
and, when applicable, to adult protective services any appropriate allegations of abuse,
neglect, or exploitation of a ward.
(D)
Limitation or termination of guardianship
A guardian shall seek to limit or terminate the guardianship authority and promptly notify
the probate division of a court of common pleas if any of the following occurs:
(1)
A ward’s ability to make decisions and function independently has
improved;
(E)
(2)
Less restrictive alternatives are available;
(3)
A plenary guardianship is no longer in the best interest of a ward;
(4)
A ward has died.
Change of residence
(1)
A guardian shall notify the probate division of a court of common pleas of a
ward’s change of residence and the reason for the change. Except if impracticable, the
guardian shall notify the court no later than ten days prior to the proposed change.
(2)
A ward’s change of residence to a more restrictive setting in or outside of the
county of the guardian’s appointment shall be subject to the court’s approval, unless a
delay in authorizing the change of residence would affect the health and safety of the
ward.
(F)
Court approval of legal proceedings
A guardian shall seek approval from the probate division of a court of common pleas
before filing a suit for the ward.
(G)
Annual plan
A guardian of a person shall file annually with the probate division of the court of
common pleas a guardianship plan as an addendum to the guardian’s report. A guardian
of an estate may be required to file an annual guardianship plan with the probate division
of the court of common pleas. The guardianship plan shall state the guardian’s goals for
meeting the ward’s personal and financial needs.
(H)
Annual registration
All guardians appointed by the court who have ten or more wards under their care shall
annually register with the probate division of the court of common pleas and provide such
information as the court may require, including but not limited to a fee schedule that
differentiates guardianship services from legal or other direct services.
(I)
Ward’s principal income
A guardian shall inform the probate division of the court of common pleas and apply to
close the guardianship of the estate if the principal income of the ward is from
governmental entities, a payee for that income is identified, and no other significant
assets or income exist.
(J)
Limits on guardian’s compensation
(1)
A guardian’s compensation is subject to Sup.R. 73.
(2)
A guardian who is in receipt of fees other than through the guardianship of the
estate shall report to the probate division of the court of common pleas the source and
entity which reviewed and authorized payment.
(3)
A guardian shall not receive incentives or compensation from any direct service
provider providing services to a ward.
(K)
Conflict of interest
A guardian shall avoid actual or apparent conflicts of interest regarding a ward’s personal
or business affairs. A guardian shall report to the probate division of the court of common
pleas all actual or apparent conflicts of interest for review and determination as to
whether a waiver of the conflict of interest is in the best interest of the ward.
(L)
Filing of ward’s legal papers
In addition to filing an inventory, if applicable, pursuant to R.C. 2111.14(A)(1) and
within three months after the guardian’s appointment, a guardian shall file with the
probate division of the court of common pleas a list of all of the ward’s important legal
papers, including but not limited to estate planning documents, advance directives, and
powers of attorney, and the location of such legal papers, if known at the time of the
filing.
Probate Panel • 7
RULE 66.09.
(A)
Responsibilities of Guardian to Ward.
Professionalism, character, and integrity
A guardian shall act in a manner above reproach, including but not limited to avoiding
financial exploitation, sexual exploitation, and any other activity that is not in the best
interest of the ward.
(B)
Exercising due diligence
A guardian shall exercise due diligence in making decisions that are in the best interest of
a ward, including but not limited to communicating with the ward and being fully
informed about the implications of the decisions.
(C)
Least restrictive alternative
Unless otherwise approved by the probate division of a court of common pleas, a
guardian shall make a choice or decision for a ward that best meets the needs of the ward
while imposing the least limitations on the ward’s rights, freedom, or ability to control
the ward’s environment. To determine the least restrictive alternative, a guardian may
seek and consider an independent assessment of the ward’s functional ability, health
status, and care needs.
(D)
Person-centered planning
A guardian shall advocate for services focused on a ward’s wishes and needs to reach the
ward’s full potential. A guardian shall strive to balance a ward’s maximum independence
and self-reliance with the ward’s best interest.
(E)
Ward’s support system
A guardian shall strive to foster and preserve positive relationships in the ward’s life
unless such relationships are substantially harmful to the ward. A guardian shall be
prepared to explain the reasons a particular relationship is severed and not in the ward’s
best interest.
(F)
Communication with ward
(1)
A guardian shall strive to know a ward’s preferences and belief system by seeking
information from the ward and the ward’s family and friends.
(2)
A guardian shall do all of the following:
(a)
Meet with the ward as needed, but not less than once quarterly or as
determined by the probate division of the court of common pleas;
(b)
Communicate privately with the ward;
(c)
Assess the ward’s physical and mental conditions and limitations;
(d)
Assess the appropriateness of the ward’s current living arrangements;
(e)
Assess the needs for additional services;
(f)
Notify the court if the ward’s level of care is not being met;
(g)
Document all complaints made by a ward and assess the need to report the
complaints to the court of common pleas.
(G)
Direct services
Except as provided in Sup.R. 66.04(D), a guardian shall not provide any direct services to
a ward, unless otherwise approved by the court.
(H)
Monitor and coordinate services and benefits
A guardian shall monitor and coordinate all services and benefits provided to a ward,
including doing all of the following as necessary to perform those duties:
(1)
Having regular contact with all service providers;
(2)
Assessing services to determine they are appropriate and continue to be in
the ward’s best interest;
(3)
Maintaining eligibility for all benefits;
(4)
Where the guardian of the person and guardian of the estate are different
individuals, consulting regularly with each other.
(I)
Extraordinary medical issues
(1)
A guardian shall seek ethical, legal, and medical advice, as appropriate, to
facilitate decisions involving extraordinary medical issues.
(2)
A guardian shall strive to honor the ward’s preferences and belief system
concerning extraordinary medical issues.
(J)
End of life decisions
A guardian shall make every effort to be informed about the ward’s preferences and
belief system in making end of life decisions on behalf of the ward.
Probate Panel • 9
(K)
Caseload
A guardian shall appropriately manage the guardian’s caseload to ensure the guardian is
adequately supporting and providing for the best interest of the wards in the guardian’s
care.
(L)
Duty of confidentiality
A guardian shall keep the ward’s personal and financial information confidential, except
when disclosure is in the best interest of the ward or upon order of the probate division of
a court of common pleas.
RULE 73.
(A)
Guardian’s Compensation.
Setting of compensation
Guardian’s compensation shall be set by local rule.
(B)
Itemization of expenses
A guardian shall itemize all expenses relative to the guardianship of the ward and shall
not charge fees or costs in excess of those approved by the probate division of a court of
common pleas.
(C)
Additional compensation
Additional compensation for extraordinary services, reimbursement for expenses incurred
and compensation of a guardian of a person only may be allowed upon an application
setting forth an itemized statement of the services rendered and expenses incurred and the
amount for which compensation is applied. The probate division of a court of common
pleas may require the application to be set for hearing with notice given to interested
persons in accordance with Civ.R. 73(E).
(D)
Co-guardians
The compensation of co-guardians in the aggregate shall not exceed the compensation
that would have been allowed to one guardian acting alone.
(E)
Denial or reduction of compensation
The probate division of a court of common pleas may deny or reduce compensation if
there is a delinquency in the filing of an inventory or account, or after hearing, the court
finds the guardian has not faithfully discharged the duties of the office.
RULE 99.
Effective Date.
[Existing language unaffected by the amendments is omitted to conserve space]
(PPP)
New Sup.R. 66.01 through 66.09 and the amendments to Sup.R. 73, adopted
by the Supreme Court of Ohio on March 10, 2015, shall take effect on June 1, 2015.
Probate Panel • 11
CURRENT PROBATE ISSUES: SAME SEX MARRIAGE
AND
RULE 66
View From the Bench
I.
SAME SEX MARRIAGE- Introduction and Background
A. Ohio Constitutional ban on marriage equality since 2004, per ballot measure
State Issue 1.
B. Henry v. Hodges: 4 same sex couples (3 married lesbian couples who were
expecting to give birth and a gay male couple seeking to adopt) filed a federal
lawsuit to force Ohio to name both parents on the birth certificates. The case
originally only sought respect for their marriages for the purpose of being listed
together on the birth certificates of their children but the challenge was
expanded to ask that Ohio respect the marriages of same sex couples legally
performed in other states.
C. Obergefell v. Hodges: a gay male couple filed a federal lawsuit to have their
Maryland marriage recognized in Ohio for the purpose of having the spouse
listed on the other’s death certificate.
D. The Henry and Obergefell Plaintiffs challenged the laws of Michigan, Kentucky,
Ohio, and Tennessee that define marriage as a union between one man and one
woman. Plaintiffs challenged the laws as violating the Fourteenth Amendment.
The district courts ruled in their favor. The Sixth Circuit consolidated the cases
and reversed. Plaintiffs then filed a Joint Petition for Writ of Certiorari asking
SCOTUS to reverse the 6th Circuit decision in each case.
E. By a vote of 5-4 the United Sates Supreme Court held that The Fourteenth
Amendment requires a State to license a marriage between two people of the
same sex and to recognize a marriage between two people of the same sex
when their marriage was lawfully licensed and performed out-of-State.
F. Impact on Probate Courts
1. Marriage licenses
2. Marriage Ceremonies
a. Municipal Court Judges- R.C. 1901.14
b. Probate Court judges - R.C. 2101.27
c. Board of Professional Conduct Opinion 2015-1
3. Estates
a. Standard Forms are being amended to be gender neutral.
b. Issues of retroactivity- recognizing a spouse when an estate is already in
progress.
4. Adoptions
a. R.C. 3107.03- Persons who may adopt
1. A husband and wife together
2. An unmarried adult
3. A married adult without the other spouse joining as a petitioner if
the other spouse is a parent of the person to be adopted and
supports the adoption
b. New HEA Form 2757 and Instructions
5. Birth Record Corrections- Ohio Department of Health
a.New HEA Form 0166
6. Name Changes- BMV and SSA
II.
Ohio Rule of Superintendence Rule 66
A. Sup R. 66.01 through 66.09 applies to all adult guardianship cases.
B. Sup R. 66.02 provides that the appointing court for good cause may, by order of
the court, exempt a guardian who is related to the ward by consanguinity or
affinity.
C. The Courts are required to implement local rules addressing
1. A process for emergency guardianship
2. A process for receiving and addressing complaints
D. Responsibilities of the Court
1. Conduct Criminal Background Check
2. Requirement s of guardian with ten or more wards
3. Guardian pre- appointment education- www.sconet.state.oh.us
4. Guardian continuing education
E. General Responsibilities of Guardian
1. Pre- appointment meeting
2. Reporting abuse, neglect exploitation
3. Limitation or Termination of Guardianship
4. Change of Residence
5. Court approval of legal proceedings
6. Annual Plan
7. Annual registration for guardian who has 10 or more wards
8. Conflict of Interest
9. Filing of ward’s legal papers
F. Responsibilities of Guardian to Ward
1. Professionalism, character and integrity
2. Exercising due diligence
3. Least restrictive alternative
4. Person-centered planning
5. Ward’s support system
6. Communication with ward-meet with the ward at least once quarterly
7. Direct Services
8. Monitor and Coordinate services and benefits
9. Extraordinary medical issues
10. End of Life Decisions
11. Caseload
12. Confidentiality
G. Standard Forms
OHIO STATE BAR ASSOCIATION
OCTOBER 13, 2015
GUARDIANSHIPS
OHIO’S NEW ADULT GUARDIANSHIP RULES
ETHICAL RESPONSIBLITIES
OF ATTORNEY GUARDIANS UNDER NEW SUP. R. 66
JAN MICHAEL LONG
PICKAWAY COUNTY PROBATE JUDGE
RULE 66
IS OHIO GUARDIANSHIP LAW BROKEN?
WHY AND HOW IT CAME ABOUT
 January 2007: Advisory Committee on Children and Families forms the Subcommittee on Adult
Guardianship to draft minimum standards
 September 17, 2008: Advisory Committee on Children and Families approves 20 Ohio
minimum standards—based on the National Guardianship Association standards
 December 18, 2009: Workgroup amends the minimum standards based on input from the Ohio
Association of Probate Court Judges
 January 5, 2010: Subcommittee on Adult Guardianship approves amended minimum standards
 January 22, 2010: Advisory Committee on Children and Families approves revised minimum
standards
 September 2013: Advisory Committee on Children and Families establishes the Rules
Subcommittee to review the Ohio minimum standards and draft rules
 January 8, 2014: Advisory Committee on Children and Families approves proposed Sup.R.
66.01 through 66.09
 March 28, 2014: Commission on Rules of Superintendence recommends the publication of
proposed Sup.R. 66.01 through 66.09 for public comments
 April 29, 2014: Supreme Court approves the publication of proposed Sup.R. 66.01 through 66.09 for
public comments
 May 13, 2014: Supreme Court issues a press release about proposed rules and included information to
provide public comments on proposed Sup.R. 66.01 through 66.09
 June 25, 2014: Public comment period closes


32 public comments received, including attorneys, Office of the Ohio Attorney General, local
courts, Ohio Judicial Conference, Ohio Judicial College Board of Trustees, advocates, social
service agencies, Ohio Long-term Ombudsman, private citizens, and School of Medicine at
University of Louisville
Reviewed more than 100 pages of comments, which translated to 358 individual public
comments
 December 5, 2014: Adult Guardianship Rules Subcommittee completes review of public comments
 December 23, 2014: Subcommittee on Adult Guardianship approves amendments to proposed rule
 December 30, 2014: Advisory Committee on Children & Families approves amendments to proposed
rules
 January 16, 2015: Commission on Rules of Superintendence approves amendments to proposed rules
 March 10, 2015: Supreme Court of Ohio adopts Sup. R. 66.01 thru 66.09
 June 1, 2015: Sup.R. 66.01 through 66.09 go into effect
WHY SUP. R. 66
• GUARDIANSHIP IS TO PROTECT A MOST VULNERABLE PERSON
• PROBATE COURT IS SUPERIOR GUARDIAN
• REQUIRES GREATER SCRUTINY AND OVERSIGHT BY OHIO PROBATE COURTS
• NEED FOR UNIFORMITY AND CONSISTENCY THROUGHOUT THE STATE
CONSIDERATIONS AND RESPONSIBILITIES
LEGAL REPRESENTATION BY ATTORNEY‐GUARDIANS
UNDER THE NEW RULE
CONSIDERATIONS
• READ AND KNOW RULE 66
• INQUIRE OF LOCAL RULES
– LOCAL COURT WEBSITES
– FRANKLIN COUNTY LOC. R. 66.15
• GUARDIANS WITH TEN OR MORE WARDS
– FRANKLIN COUNTY LOC. R. 66.16
• EMERGENCY GUARDIANSHIPS
NEW RESPONSIBILITIES
• GUARDIANSHIP PRE‐APPOINTMENT EDUCATION
• JUDICIAL COLLEGE CURRICULUM
• SCHEDULED PROGRAMMING
• GUARDIANSHIP EDUCATION
• WAIVER
• LOCAL RULE EXCEPTIONS
• CONTINUING EDUCATION‐ RULE 66.07
• REPORT OF COMPLIANCE
• ARE THERE EXCEPTIONS TO THIS?
ETHICAL CONSIDERATIONS
• UNDER NEW RULE, SPECIFIC DIRECTION TO AVOID CONFLICTS OF INTEREST
• RULE 66.08(K)
RESPONSIBILITIES
• FILE WARD’S LEGAL PAPERS
• SUP. R. 66.08(L)
ETHICAL RESPONSIBILITIES
• SUP. R. 66.09(A)
• PROFESSIONALISM, CHARACTER AND INTEGRITY
– ACT IN A MANNER ABOVE REPROACH
– NO EXPLOITATION
– BEST INTEREST
ATTORNEY/GUARDIAN FEES
• GUARDIAN COMPENSATION
• SUP. R. 73
• CHECK LOCAL RULE
ATTORNEY FEES
• JOHNSON CASE STILL APPLIES
• EXPLANATION OF LEGITIMATE PURPOSE FOR TIME SPENT
• KEEP RECORDS
• SEPARATE LEGAL VERSUS NON‐LEGAL
ATTORNEY/GUARDIAN FEES
• CHECK WITH COURT
• ANTICIPATE A HEARING
FEES LOCAL RULES
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CUYAHOGA CO. LOC. R. 71.3 CUYAHOGA CO. LOC. R. 73.1
DELAWARE CO. LOC. R. 71.1
FRANKLIN CO. LOCAL RULES SAME NUMBER AS DELAWARE
Cuyahoga County Local Rule 71.3
(A) The following provisions apply to attorney fees allowed as part of the expense for administering a guardianship or trust or in connection with an adoption proceeding:
– (1) Attorney fees shall be based upon the actual services performed and the reasonable value of the services.
– (2) All applications for attorney fees shall set forth an itemized statement of the services performed, the date services were performed, the time spent in rendering the services, and the rate charged per hour.
– (3) In determining the reasonableness of the requested attorney fees, the court shall consider the following: The prior experience of the attorney, the complexity of the matter presented, any special problems that may have presented themselves during the representation, the time spent by the attorney, and, for guardianship and trust cases, the amount of assets and income available for the payment of attorney fees.
– (4) Any services provided by "paralegals" must be performed under the supervision of a licensed attorney who must verify such supervision on the application.
(B) The following provisions shall apply wherein an attorney is serving as the guardian:
– (1) Paragraphs (A)(1) through (4) of this rule shall apply.
– (2) The attorney/guardian may seek guardian's compensation pursuant to Local Rule 73.1 or attorney fees in accordance with this section, but not both.
– (3) In addition to the factors set forth in Paragraphs (A)(1) through (4) of this rule, the court shall also consider the amount of non‐legal time expended by the attorney/guardian in managing the guardianship estate.
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Cuyahoga County Local Rule 73.1
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(A) Unless otherwise provided by law or ordered by the court, a guardian may charge for ordinary services an amount computed in accordance with the following schedule:
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(1) During each accounting period required by statute:
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(a) 3% of the total income; and 3% of the total expenditures.
(b) 10% of gross rental income from real estate.
(2) An annual fee of $2.50 per $1,000.00 of the fair market value of the principal.
(3) Minimum compensation of $500.00 per year.
(4) Compensation computed on income will not be allowed on balances carried forward from one accounting period to another; nor will an investment of funds of the final distribution of unexpended balances to award at the close of a guardianship be considered as an expenditure.
(B) For the purpose of computing a guardian's compensation as herein provided, the fair market value of the principal shall be determined by the guardian as of the appointment date and as of each anniversary thereafter. The compensation so determined may be charged during the ensuing year. The annual principal valuation shall be adjusted from time to time to reflect additions to and withdrawals from the principal of the estate, and the compensation for the remaining portion of the annual period shall be similarly adjusted to reflect such revised valuation.
(C) Additional compensation, reimbursement for expenses incurred, and fees of a guardian of the person only may be fixed by the court on application. The court may require that applications for fees or compensation be set for hearing and that written notice of the time and place of the hearing and the amount applied for be given to interested parties, as required by the court. A copy of the notice, with certified mail return receipt attached, together with an affidavit of the service of such notice, shall be filed prior to the hearing.
(D) The compensation of co‐guardians in the aggregate shall not exceed the compensation which would have been payable if only one guardian had been acting.
(E) A separate schedule of the computation of the guardian's compensation shall be set forth in the guardian's account as a condition of its approval.
(F) Except for good cause shown, neither compensation for a guardian nor fees to the attorney representing the guardian, will be allowed when the guardian is delinquent in filing an account as required by RC 2109.30.
Delaware County Local Rule 71.1
All fees charged by an attorney representing a fiduciary in matters before this Court, including but not limited to work on decedents’ estates, guardianships, conservatorships, and testamentary trusts, must be disclosed to the Court (typically on the fiduciary’s account) regardless of the source of payment. If the source of payment is other than the fiduciary, counsel must identify on the account the source of payment. For the purpose of this rule, “fiduciary” also includes commissioners and applicants for release from administration. If an account is not required, the payment must be disclosed to the Court on the Certificate of Termination, through consents to fees from those bearing the burden of the fee, or on other court filings, as may be appropriate. The Court presumes that attorneys are familiar with Sup.R. 71 and Prof.Cond.R. 1.5 governing all fees and expenses of attorneys. As provided in Sup.R. 71(D), the Court may set the attorney fees and expenses for hearing, regardless of the submission of consent(s) to fees. In all cases when counsel has calculated attorney fees on other than an hourly basis, counsel shall prepare a separate filing identifying the method applied, showing the Court the calculation, and reflecting the result. In all estates for decedent’s dying after December 31, 2012, the Court will schedule a hearing when counsel has calculated the attorney fees on other than an hourly basis (See Loc.R. 71.4), unless counsel previously has filed an application for approval of a contingent fee contract (See Loc.R. 71.8). Delaware County Local Rule 71.2
In all matters where an attorney is the fiduciary of the estate,
guardianship, or trust, and that attorney or another is the attorney of
record, detailed records shall be maintained describing time and
services as fiduciary and as attorney, and if requested by the Court, or
required by local rule, shall be submitted to the Court for review.
Upon review of the records, the Court may set the fees for hearing,
regardless of the submission of consent(s) to fees. Prof.Cond.R. 1.5
and Sup.R. 71 shall govern the reasonableness of all fees,
notwithstanding statutory commissions and allowances. The Court
assumes an attorney appointed as a fiduciary has been selected due to
the attorney’s special knowledge and abilities that are expected to
result in savings of fees to the estate, guardianship, or trust.
Delaware County Local Rule 73.1
(A) Guardian’s compensation for services as a guardian of the estate shall be computed annually upon application
and entry and shall be supported by calculations and documentation. A Calculation of Guardian Compensation form
(Loc. F. 73.1A) shall be filed in support of the application. Extraordinary fee applications shall be set for hearing unless
the Court waives hearing. The following fee schedule shall apply for ordinary guardian’s compensation:
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(1) Income/Expenditure Fee. Four percent (4%) of the first $10,000 of income received, plus three percent (3%) of the balance
in excess of $10,000, excluding income from rental real estate, and four percent (4%) of the first $10,000 of expenditures, plus
three percent (3%) of the balance in excess of such $10,000 except expenditures pertaining to rental real estate.
(2) Principal Fee. Three Dollars ($3.00) per thousand for the first $200,000 of fair market value, and Two Dollars ($2.00) per
thousand on the balance of the corpus, unless otherwise ordered.
(3) Principal Distribution Fee. Three Dollars ($3.00) per thousand for the first $200,000 of fair market value of corpus distributed
upon the termination of the guardianship, and Two Dollars ($2.00) per thousand on the balance of the corpus distributed upon
the termination of the guardianship, unless otherwise ordered. 52
(4) Income and Rental Income Defined. If the guardian manages rental real estate, a fee amounting to ten percent (10%) of
gross rental real estate income may be allowed. If the guardian receives net income from rental real estate actively managed by
others, then the guardian shall treat such net income as ordinary income. No fee shall be allowed to the guardian on
expenditures pertaining to rental real estate. As used in this rule, “income” shall mean the sum of income as defined in R.C.
1340.03, plus pension benefits, and net gains from the sale of principal. Assets held by the ward at the date of appointment are
deemed principal and not income.
(5) For purposes of calculating the allowable guardian’s compensation, the income factor shall be the income received during
the period covered by the account, and the corpus shall be the sum reflected as the balance forward shown on the inventory or
prior account, whichever has been filed most recently.
(B) Unless the Court waives the hearing, compensation for services as guardian of the person shall be set for
hearing and notice shall be given to the guardian of the estate, if any has been appointed.
(C) Compensation for a corporate fiduciary exempt from bond pursuant to R.C. 1111.21 shall be compensated
in accordance with its published fee schedule if the fee schedule is filed in this Court. The Court will not approve
an account reflecting compensation to a corporate fiduciary without the fee schedule being filed with the Court
in Case # XXXXXXXX.
(D) After the death of the ward, the Court will consider final guardian’s compensation as a lien on the ward’s
assets. If the Court approves the compensation, the compensation may be paid out of the guardianship assets
and included in the final guardianship account. The 53 Court may require that notice of the application be given
to the fiduciary of the deceased ward or other interested persons.
Franklin County Local Rules 71.1
All fees charged by an attorney representing a fiduciary in matters before this Court, including but not limited to work on decedents’ estates, guardianships, and trusts, must be disclosed on the fiduciary’s account, regardless of the source of payment. If the source of payment is other than the fiduciary, the source of payment must be identified on the account. For the purpose of this rule, fiduciary includes commissioners and applicants for release from administration. If no account is to be filed, the payment must be disclosed on a consent to fees signed by the payor of the fees. Attorneys are expected to be familiar with Prof. Cond. Rule 1.5 that governs the reasonableness of fees. Upon review of the records, the Court may set the fees for hearing, regardless of the submission of consent(s) to fees. (Eff. 01/01/08) Probate Panel • 29
Franklin County Local Rule 71.2
In all matters where an attorney is the fiduciary of the estate, guardianship, or trust, and that attorney or another is the attorney of record, detailed records shall be maintained describing time and services as fiduciary and as attorney, which record shall, upon request, be submitted to the Court for review. Prof. Cond. Rule 1.5 shall govern the reasonableness of all fees, notwithstanding statutory allowances, or the attorney’s standard billing rate, if the services do not require special expertise. The Court assumes an attorney, appointed as fiduciary, has been 32 selected due to the attorney’s special knowledge and abilities, resulting in a savings of fees to the estate, guardianship, or trust. Upon review of the records, the Court may set the fees for hearing, regardless of the submission of consent(s) to fees. (Eff. 02/01/2013) Franklin County Local Rule 73.1
(A) Guardian’s compensation for services as guardian of the estate shall be computed annually upon
application and entry and shall be supported by calculations and documentation. The following fee
schedule shall apply unless extraordinary fees are requested. Extraordinary fee applications shall be
set for hearing unless hearing is waived by the Court.
(1) Income/Expenditure Fee. Excluding income from rental real estate, four percent (4%) of the first $10,000 of income received, plus three percent (3%) of the balance in excess of $10,000, and four percent (4%) of the first $10,000 of expenditures except expenditures pertaining to rental real estate, plus three percent (3%) of the balance in excess of such $10,000. If the guardian manages rental real estate, a fee amounting to ten percent (10%) of gross rental real estate income may be allowed. If the guardian receives net income from rental real estate actively managed by others, then the guardian shall treat such net income as ordinary income. No fee shall be allowed to the guardian on expenditures pertaining to rental real estate. As used in this rule, “income” shall mean the sum of income as defined in The Ohio Principal and Income Act, including pension benefits and net 37 gains from the sale of principal. Assets held by the ward at the date of appointment are deemed to be principal and not income. (2) Principal Fee. $3.00 per thousand for first $200,000 of fair market value, and $2.00 per thousand on the balance of the corpus, unless otherwise ordered.
(3) Principal Distribution Fee. $3.00 per thousand for the first $200,000 of fair market value of corpus distributed upon the termination of the guardianship, and $2.00 per thousand on the balance of the corpus distributed upon the termination of the guardianship, unless otherwise ordered.
(B) Compensation for services as guardian of the person only shall be set for hearing unless the hearing
is waived by the Court.
(C) Compensation for corporate fiduciaries who are exempt from bond pursuant to Ohio R.C. 1111.21
shall be compensated pursuant to their published fee schedule if the fee schedule is filed in this Court
under Case No. 368,530.
(D) All motions, including applications for compensation, by guardians of veterans must comply with Ohio
R.C. Chapter 5905 and all other rules and regulations of the Department of Veterans Affairs. (Eff.
02/01/2013)
ATTORNEY FEES BEST PRACTICE SUGGESTIONS
• CONSISTENT WITH RULES OF PROFESSIONAL CONDUCT
• PARALEGAL CHARGES ITEMIZED SEPARATELY BY DATE, SERVICE AND CHARGE
GUARDIAN COMPENSATION
BEST PRACTICE SUGGESTION
• USUAL, CUSTOMARY FEES WITHIN THE COMMUNITY
• CHARACTER OF THE SERVICES • COMPLEXITY AND TIME INVOLVED
• SKILL AND EXPERIENCE REQUIRED
• BENEFIT OF THE SERVICES TO THE WARD
• GUARDIANS SHOULD NOT HIRE FAMILY MEMBERS TO PERFORM WORK FOR WARD
ATTORNEY/GUARDIAN
• SEPARATE TIME FOR LEGAL SERVICES VERSUS NON‐LEGAL
• ADJUST HOURLY RATE ACCORDINGLY
Rule 1.14
• RULE 1.14: CLIENT WITH DIMINISHED CAPACITY • (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client‐lawyer relationship with the client. • (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. • (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to division (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
THE FUTURE
• IMPLEMENTATION BY COURTS
• STANDARD PROBATE FORMS
• MODIFICATIONS OF THE RULE
• HOUSE BILL 50
TAKEAWAYS
• KNOW SUP. R. 66
• FIND OUT LOCAL RULES
• UNDERSTAND LOCAL COURT PRACTICES AND EXPECTATIONS
• COMMUNICATION
– WITH COURT
– WITH WARD
• DOCUMENTATION
• WHEN IN DOUBT– HEARING WITH NOTICE
• DISCLOSURE AND TRANSPARENCY TO ALL
Attorney Fees
Judge Richard Carey
Rules of Professional Conduct:
1. Sup. Rule 71 provides that “attorney fees in all matters” shall be
governed by Rule 1.5 of the Ohio Rules of Professional Conduct.
2. Adopted 2/1/07 to replace the Disciplinary Rules (and, here, specifically
DR 2-106).
3. Attorney fees must be “reasonable.”
4. Factors in determining what is a reasonable fee:
a. Time and labor; novelty and difficulty of the issues; requisite skill.
b. Likelihood, if apparent to client, that it will take atty from other work;
c. Fee customarily charged in the locality;
d. The amount involved and the results obtained
e. Time limitations, if any.
f. Experience, ability, and reputation of the atty.
g. Whether fee is fixed or contingent---note, must be in writing if
contingent.
Superintendence Rule 71: Note: Rules 51 – 78 are designated for the Probate
Courts.
1. Directs that all requests for attorney fees be by “written application.”
(C).
2. Requires a “hearing” unless waived by “local rule.”
In Clark County, we have waived the written application if they follow
the “guidelines” attached to our local rules, and attach the computation
per the guidelines”.
Local Rule Schedule for Attorney Fees.
a. Adopted by Local Rule (under the authority of SR 5)
b. Clark County has for many years used “Fee Guidelines”---which apply
to estates, guardianships and trusts.
c. Used to be more popular around the state. A number of counties
have changed to requiring time computation sheets.
d. Attorneys still directed to limit fee to what is “reasonable.”
3. No attorney fee for an estate may be taken until the final account is
“prepared” for filing, unless court grants exception. Eg, partial fee.
What is Reasonable:
1. Clark County: Fee Guideline
 Used to permit 1% for all assets listed as non-probate assets on the
Ohio estate tax return. Abolished January 1, 2013. We, by court rule,
created a Supplemental Affidavit of material, which we have used
without issue now to address compensation for non-probate assets
for over two years.
2. Two Different approaches:
Uncle Deni Clunk (retire judge from Stark County) Rule: “Wow, that
seems a bit generous, don’t you think?”
Uncle Chuck Hague (retired judge from Ashtabula County) Rule: “What
the hell is he thinking!”
3. The Probate Court has “exclusive jurisdiction” to determine the
reasonableness of attorney fees [In re Estate of Cercone (1969), 18 Ohio
App.2d 26]; and indeed is given “broad discretion” over payment of the
same. [In re Estate of Fugate (1993), 86 Ohio App.3de 293].
4. Technically, courts are to “disallow” attorney fees if the fiduciary is
“delinquent” in filing their accounts unless “good cause is shown.” (SR
71(E)).
5. The Court has the authority to reduce attorney fees where the attorney
has mismanaged, squandered, or diminished the value of the estate, or
when the attorney engaged in self-dealing. In re Estate of Nicholson,
2005-Ohio-4890.
6. Court can order the return of attorney fees if there was a failure to
disclose a conflict of interest (eg, atty had a 50K mortgage on estate
property and was hired by the administrator to handle the estate).
Disciplinary Council v. Rettinger, 2009-Ohio-1429.
7. If there is problem, should assign for hearing, and use the factors in Rule
1.5.
Case Study:
Total estate: $41K: Personal property of 5,000; Cadillac valued at 24,000;
Jaguar valued at 12,000; and two rifles. He bequeathed Cadillac to an old
love interest. He had named another love interest as a joint owner with
right of survivorship on two accounts of 34,000--- non-probate asset. Hired
attorney to litigate ownership of the two accounts, which I disposed of on a
motion for summary judgement. Presented a motion for attorney fees in
the amount of $24,400. Leaned more toward the Uncle Chuck Hague
approach: “hell no!” Despite the informality of my decision, I think you will
glean reference to a sufficient number of Rule 1.5 factors.
Extraordinary Fee Form
- I became probate judge in 2003, and inherited an estate which had been
opened in 1995. The attorney was also acting as the administrator as it
was a cousin. Inventory suggested estate assets totaling $446K. At the
end of 1997, a status report suggested that the estate was nearing
completion. Attorney withdrew, with a successor attorney appointed, in
January of 2003, as the attorney had been elected judge. He stayed on,
however, as the administrator. An Account filed in 2005 showed several
attorney fee payments totaling $26,173. The court’s fee guideline
schedule suggested a fee of $10,929. A request for “extraordinary fees”
was filed and purported that counsel had completed 205 hours of work,
and that all heirs consented to the request.
- When the dust settled before the Disciplinary Board, the attorney/judge
was found to have paid attorney fees before the filing of the account
and without prior court approval---in violation of local rules; had used
estate assets to pay personal debts; had re-created time sheets years
after the fact rather than keeping “contemporaneous” time records; and
that the attorney fee of $26K---in addition to his fiduciary fee of
$14,000---was “clearly excessive” and in violation of, then, DR 2-106(A).
This, and other ethical violations, led to his removal from the bench and
disbarment.
- This also led to the form in your materials concerning requests for
extraordinary attorney fees. One of the Disciplinary Board members
asked me, as I was called to testify, how an heir would know if the
attorney fee was, in fact, extraordinary. I created this simple form in
response. The form states what would have been the ordinary fee; and
provides a statement by the fiduciary that he/she is satisfied that the
attorney’s work justifies the extra fee.
Attorney Fee for Attorneys Hired by Heirs who are Not the Administrators
Would just note that in rare cases, probate courts have authorized
payment of reasonable attorney fees from the estate to an attorney employed by
an heir or beneficiary. Must show that the services of this attorney produced a
benefit to the estate---meaning it benefitted all of the heirs. In re Estate of Brown
(1992), 83 Ohio App.3d 540. For example: an heir files an exception to the
Inventory which yields a return of assets to the estate otherwise not included by
the administrator---dispute over a bank account. This might justify the attorney
fee as part of the expenses of the estate.
THE OHIO STATE BAR ASSOCIATION
2015 View from the Bench Seminar
October 13, 2015
• EDUCATE
• ENLIGHTEN
• ENTERTAIN
• KNOW THE JUDGE
• KNOW THE COURT (STAFF)
• KNOW YOUR CLIENT
KNOW THE JUDGE
• VIEW COURT WEBSITES
• SPEAK TO FELLOW ATTORNEYS
– ESPECIALLY WHEN APPEARING IN ANOTHER COUNTY
• TALK TO THE BAILIFF/ASSISTANT
• SPEAK TO THE JUDGE
– EX PARTE ISSUE?
KNOW THE COURT STAFF
• SPEAKING TO COURT STAFF IS LIKE TALKING TO THE JUDGE
• IF YOU’RE “IN” WITH THEM, THAT’S HALF THE BATTLE
• TRAIN YOUR STAFF TO FOLLOW THESE SAME GUIDELINES – OUR STAFFS REPRESENT US
SCHEDULING HEARINGS
• WORK WITH STAFF
• SCHEDULING COMPLEXITIES
– ESPECIALLY WITH MULTIPLE ATTORNEYS
• TIME CONSTRAINTS
– GOOD FAITH ESTIMATE OF TIME NEEDED WHEN OBTAINING A HEARING DATE
SCHEDULING HEARINGS
• CONTINUANCES
– LOCAL RULE REQUIREMENTS
– DON’T ASSUME CONTINUED UNTIL ENTRY IS SIGNED
– AGREEMENT WITH OPPOSING COUNSEL
• STILL MIGHT NOT BE ENOUGH
• SUPREME COURT TIME GUIDELINES
FILING DOCUMENTS
• HANDWRITTEN VS. TYPED
– THIS IS THE 21ST CENTURY
• LEGIBLE ATTORNEY SIGNATURE AND PRINT NAME
• ATTORNEY NUMBER
• TIMELY SUBMIT ENTRIES
ASPIRATIONAL IDEALS
• PREVENT MISUSES OF COURT TIME BY VERIFYING THE AVAILABILITY OF KEY PARTICIPANTS FOR SCHEDULED APPEARANCES BEFORE THE COURT AND BY BEING PUNCTUAL
• COMMUNICATION IS THE KEY
• TIMELY ADVISE THE COURT OF ISSUES THAT MIGHT RESULT IN A REQUEST FOR CONTINUANCE
3 P’S OF PROFESSIONALISM
• PREPAREDNESS
• PUNCTUALITY
• POLITENESS
THE HEARING
• PREPAREDNESS
– BE READY FOR TRIAL
– LABEL EXHIBITS AHEAD OF TIME
– KNOW THE COURTROOM
• SPEAK TO BAILIFF/COURT ADMINISTRATOR
– TECHNOLOGY EQUIPMENT
THE HEARING
• PUNCTUALITY
• COMMUNICATION IS THE KEY
• CONTACT COURT WHEN THERE ARE DELAYS
A LAWYER’S CREED
• TO THE COURTS AND OTHER TRIBUNALS, AND TO THOSE WHO ASSIST THEM, I OFFER RESPECT, CANDOR AND COURTESY…… I SHALL DO HONOR TO THE SEARCH FOR JUSTICE
ASPIRATIONAL IDEALS
• AS TO THE COURT AND OTHER TRIBUNALS, AND TO THOSE WHO ASSIST THEM, I SHALL ASPIRE:
• TO REPRESENT MY CLIENTS IN A MANNER CONSISTENT WITH THE PROPER FUNCTIONING OF A FAIR, EFFICIENT AND HUMANE SYSTEM OF JUSTICE. I SHOULD:
ASPIRATIONAL IDEALS (CONTINUED)
• ADVISE CLIENTS ABOUT THE OBLIGATIONS OF CIVILITY, COURTESY, FAIRNESS, COOPERATION AND OTHER PROPER BEHAVIOR EXPECTED OF THOSE WHO USE OUR SYSTEM OF JUSTICE.
• NOT TV COURT
• CELL PHONE RESTRICTIONS
• REMIND CLIENT ABOUT BEHAVIOR
– REVIEW LOCAL RULES
ASPIRATIONAL IDEALS
• TO MODEL FOR OTHERS THE RESPECT DUE TO OUR COURTS, I SHOULD:
• SHOW RESPECT BY ATTIRE AND DEMEANOR
• THE LOUDER THE VOICE DOESN’T MEAN THE JUDGE HEARS IT BETTER
MULTIPLE VOICES AT THE SAME TIME CANNOT BE HEARD
• NOT JUST IN COURT TO THE JUDGE
– INCLUDES COURT STAFF
CIVILITY
• ONE OF THE MOST HOTLY DISCUSSED TOPICS AROUND THE COUNTRY
• MISCONDUCT IN THE COURTROOM
• CAUSES?
I KNOW THE JUDGE
• ASPIRATIONAL IDEALS
• AVOID UNDUE FAMILIARITY WITH MEMBERS OF THE JUDICIARY
CODE OF JUDICIAL CONDUCT
• A JUDGE SHALL NOT PERMIT FAMILY, SOCIAL, POLITICAL, FINANCIAL, OR OTHER INTERESTS OR RELATIONSHIPS TO INFLUENCE THE JUDGE’S JUDICIAL CONDUCT OR JUDGMENT.
• A JUDGE SHALL NOT CONVEY OR PERMIT OTHERS TO CONVEY THE IMPRESSION THAT ANY PERSON OR ORGANIZATION IS IN A POSITION TO INFLUENCE THE JUDGE.
THE “PRO SE” LITIGANT
• BE OVERLY CAUTIOUS WITH FAMILIARITY OVERTURES
• AVOID “IN CAMERA” PLEASANTRIES
• SIDE BARS SHOULD INCLUDE THE “PRO SE”
ATTORNEY FEES
• KNOW THE LOCAL RULES
• FEE GUIDELINES
• CAUTION: HAS THE ELIMINATION OF THE OHIO ESTATE TAX CREATED CONFUSION?
ATTORNEY FEES
• KEEP ACCURATE RECORDS
• IN RE GUARDIANSHIP OF MARGARET J. MITSEFF, STARK COUNTY PROBATE COURT, CASE NO. 207946
• IN RE ESTATE OF MARGARET J. MITSEFF, STARK COUNTY PROBATE COURT, CASE NO. 210357
ATTORNEY FEES AND MISCONDUCT
• Cincinnati Bar Assn. v. Hartke, Slip Opinion 2012‐Ohio‐2443
– Be Careful how you try to collect
Sup. R. 78
• (B)(1) If a decedent’s estate must remain open more than six months pursuant to R.C. 2109.301(B)(1), the fiduciary shall file an application to extend administration (Standard Probate Form 13.8). • (2) An application to extend the time for filing an inventory, account, or guardian’s report, shall not be granted unless the fiduciary has signed the application Probate Panel • 55

Probate - Ohio State Bar Association

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