When an Estate Attorney Contacts a Family Member Against Instructions

Attorney Answer

On Connecticut law this is probably a professional-conduct complaint rather than a lawsuit, and it is almost certainly not a Probate Court removal case — the removal statute reaches the fiduciary, not the estate's attorney.

Start with who the client is. In a decedent's estate the attorney represents the fiduciary — the executor or administrator, here your mother — not the family collectively and not each beneficiary individually. An instruction that he speak only to certain family members is, in the ordinary case, the client's instruction. If it is being ignored, the client is the person whose instruction is being ignored, and the client holds the leverage: she can direct him in writing, and she can replace him.

The removal statute, and its limit. Conn. Gen. Stat. § 45a-242(a) permits the Probate Court, on its own motion or on the petition of any interested person or the surety on the fiduciary's bond, after notice and hearing, to remove a fiduciary who becomes incapable of executing the trust, neglects to perform its duties, wastes the estate, or fails to furnish an ordered bond; where lack of cooperation among cofiduciaries substantially impairs administration; where unfitness, unwillingness or persistent failure to administer the estate effectively makes removal best for the beneficiaries; or on a substantial change of circumstances. Note the subject of that section: it removes a fiduciary — an executor, administrator, trustee or guardian. It is not a mechanism for removing counsel.

Conflict of interest comes from the cases, and the bar is high. In In re Andrews' Appeal from Probate, 78 Conn. App. 429 (2003), the Appellate Court affirmed removal where an attorney-fiduciary had drafted the instruments naming himself and then generated protracted litigation over his own fees against the estate, producing an acrimonious relationship that compromised his ability to represent the beneficiaries fairly. But the court was careful about the standard: a merely potential conflict does not compel removal. What is required is a demonstrated, continuing conflict that renders the fiduciary unfit. Friction over who the lawyer talks to is a long way from self-interested fee litigation.

And the closest case cuts against the fiduciary-duty theory. In Cammarota v. Guerrera, 148 Conn. App. 743 (2014), an attorney delivered to a third party a check payable to his client after the client had voiced concerns about that very third party. The Appellate Court reinstated the legal malpractice count — expert testimony on the standard of care was not required because the conduct was within jurors' ordinary knowledge, and proximate cause was for the jury. But it affirmed a directed verdict for the attorney on the breach-of-fiduciary-duty count, holding that not every breach of duty in an attorney-client relationship is a fiduciary breach; that claim concerns loyalty and honesty, and absent fraud, self-dealing or a conflict of interest it fails. Read those two halves together: a negligence theory tied to concrete harm can survive, and a fiduciary theory built on the contact alone probably will not.

If your real target is the fiduciary rather than the lawyer, Barash v. Lembo, 348 Conn. 264 (2023), sets out the elements — a fiduciary relationship giving rise to a duty, breach, causation and damages — and holds that self-dealing is not a required element, because a trustee's duties of loyalty, care, prudence and impartiality extend beyond the prohibition on self-dealing. The court expressly left open what the elements are for fiduciaries who are not trustees, so do not assume that holding transfers to an attorney.

What you can do

1. Establish in writing who the attorney's client is. Ask for the engagement letter and the scope of the representation. Everything else follows from that answer. 2. Have the fiduciary put the instruction to the attorney in writing, dated, and keep the response. An oral instruction four years into an estate is not a record. 3. Identify the concrete harm. Money moved, information disclosed, delay caused, a position taken adverse to the estate. Cammarota shows that without demonstrable harm the fiduciary count fails, and without damages there is no claim at all. 4. If the complaint is about the attorney's professional conduct — confidentiality, ignoring the client, conflicts — file a grievance with the Statewide Grievance Committee. That is the correct forum, it costs nothing, and it does not require you to have been the client. 5. If the fiduciary directed or tolerated the contact and the estate has been harmed, any interested person may petition the Probate Court under § 45a-242(a). Bring evidence of a clear and ongoing problem, not friction. 6. Four years in, ask for a full accounting. If it is not provided, ask the Probate Court to order one. An accounting often surfaces the real dispute faster than any conduct complaint.