Disqualifying Opposing Counsel In A Lawsuit Involving Abuse Of A Power of Attorney

I am presently involved in a lawsuit in which my clients, three adult children of their now deceased father, are suing their deceased father’s former agent under a Power of Attorney. As alleged in the Verified Complaint filed by plaintiffs, the adult children claimed that the decedent either was incompetent when he signed the Power of Attorney or he was unduly influenced to sign the document by the agent. The children also claimed that the agent breached her fiduciary duty when she used the Power of Attorney to change the beneficiary designations on three annuities of substantial value owned by the decedent to either eliminate my clients as annuity beneficiaries, or reduce the childrens’ share of the annuity proceeds. Antonio Espinosa, Esq., the attorney who formerly represented the decedent, also represented the agent in the lawsuit filed by the adult children. Mr. Espinosa or personnel employed by his law firm prepared the Power of Attorney at issue and conducted the signing ceremony at which the decedent signed the document. We believed that a conflict of interest existed which barred Mr. Espinosa from presenting the agent in the present lawsuit. As a result, we filed a motion asking the Court to enter an Order disqualifying Mr. Espinosa from representing the agent. The motion was recently granted, and an Order was entered disqualifying Mr. Espinosa. A portion of the letter brief we submitted in support of the motion to disqualify follows:

As set forth herein, Antonio Espinosa, Esq. was the scrivener of the decedent’s purported Power of Attorney, the validity of which forms the basis of this lawsuit.  As alleged in plaintiffs’ Verified Complaint, Mr. Espinosa drafted the document and a member of his law firm accompanied defendants to the decedent’s bedside for the execution of the document.   As the individual who prepared the document and arranged for its execution, Mr. Espinosa has personal knowledge of relevant and material information that must be fleshed out through the discovery process, and will be central to the trial of this case.

R.P.C. 3.7 provides, in pertinent part, as follows:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. ..

Mr. Espinosa is an essential witness in this case, and he will be deposed and called to testify at trial.  Additionally, Mr. Espinosa’s file regarding his representation of Peter Graffia has already been subpoenaed.   His ability to comply with discovery requests will be tempered by his duty to defendants.  Therefore, a clear conflict exists.

Moreover, Mr. Espinosa purportedly acted as counsel for the decedent, at least with regard to the preparation of the power of attorney in issue in this case.  He is now legal counsel for the Graffia defendants.  Grace Graffia is being sued, among other things, for unduly influencing the decedent into executing the document at a time when he was infirm and in all likelihood incapacitated, and for breaching her fiduciary duties to the decedent. In other words, Mrs. Graffia is being sued for breach of her purported fiduciary duties to Mr. Espinosa’s client, with regard to her obligations under the document prepared by him.

R.P.C. 1.9 provides, in pertinent part, as follows:

A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client…

A matter is “substantially related” if the facts relevant to the prior representation are relevant and material to the subsequent representation.  City of Atl. City v. Trupos, 201 N.J. 447, 992 A.2d 762 (2010).  Here, Mr. Espinosa represented Peter Graffia.  Mr. Espinosa owes a duty to Mr. Graffia to not represent Mrs. Graffia, who is alleged to have breached a duty to him. Having first represented the principal under the power of attorney, Mr. Espinosa simply cannot now represent the agent under that same document in claims relating to the agent’s breach of fiduciary duty.

For these reasons, plaintiffs’ cross-motion to disqualify Mr. Espinosa should be granted.

The Order disqualifying opposing counsel is annexed here – Disqualification Order