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In the Matter of the Estate of Chet Adkins (5/13/94), 874 P 2d 271
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NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate )
) Supreme Court No. S-5487
of ) Superior Court No.
) 4FA-86-32 P
CHET ADKINS, )
) O P I N I O N
Deceased. )
______________________________) [No. 4078 - May 13, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Richard D. Savell,
Judge.
Appearances: Chet Harvey Adkins, pro
se. Julia B. Bockmon, Robertson, Monagle &
Eastaugh, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
COMPTON, Justice.
This case presents the issue whether the probate court
abused its discretion in closing an estate notwithstanding one
heir's allegations that (1) the court should have disqualified an
attorney for the estate and (2) the court should have voided an
agreement pursuant to which the heir relinquished his interest in
the estate. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Chet W. Adkins (Decedent) committed suicide in December
1985. His son, Chet H. Adkins (Adkins), retained an attorney,
George E. Goerig, Jr. (Goerig), to assist in his application to
become administrator of the Decedent's estate (the Estate). The
probate court1 designated Adkins as special administrator.2
Adkins substituted the law firm of Campbell, Ostrosky & Thwaites
as counsel to the Estate, with Goerig remaining as its tax
counsel. The probate court ultimately designated Adkins as
personal representative.3
In March 1987 Adkins was charged with murder. He
resigned as personal representative and his sisters, Cheryl
O'Brien and Brenda Adkins, became co-personal representatives of
the Estate. Goerig was substituted as counsel to the Estate. In
May 1987 Adkins signed a Relinquishment Agreement under which he
renounced his interest in the Estate and certain trust funds in
exchange for the Estate paying his legal fees to defend against
the murder charge.4 Adkins eventually pled guilty to second-
degree murder and was incarcerated.
B. Proceedings in the Probate Court
Following Goerig's substitution as counsel to the
Estate, Adkins petitioned the probate court to disqualify Goerig,
alleging that Goerig had a conflict of interest.5 Goerig moved
to stay the disqualification petition because Adkins had made
identical claims in a malpractice suit he had filed against
Goerig, Adkins v. Goerig, No. 3AN-90-8261 Ci. (Alaska Super.,
filed September 30, 1990) (malpractice action). The probate
court initially stayed consideration of Adkins' petition for
disqualification, but dismissed the petition when it approved
closure of the Estate:
The court finds that the best interests
of this estate require swift resolution and
closing of the estate. The court further
finds that disqualification of the estate's
remaining attorney, George E. Goerig, would
not accomplish that purpose and would
severely prejudice and harm the estate. If
Mr. Goerig were disqualified the estate would
have to employ a new attorney for the
purposes of the final accounting and closing
of the estate. Such attorney would be
required to master the details of this estate
which could only be accomplished at great
expense. The estate has no remaining funds
available to pay such attorney. The court
further finds that there would be no harm to
the estate by permitting the estate to be
closed with George Goerig's participation.
Adkins appeals pro se. AS 22.05.010; Alaska R. App. P. 202(a).
II. DISCUSSION
A. Disqualification
We review questions of attorney disqualification under
the abuse of discretion standard. Lowdermilk v. Lowdermilk, 825
P.2d 874, 876 (Alaska 1992); Munn v. Bristol Bay Hous. Auth., 777
P.2d 188, 196 (Alaska 1989). The crux of the disqualification
issue is whether an attorney's representation of a new client
"'will injuriously affect his former client in any matter in
which [the attorney] formerly represented [the former client].'"
Aleut Corp. v. McGarvey, 573 P.2d 473, 475 (Alaska 1978) (quoting
In Re Boone, 83 F. 944, 952-53 (N.D. Cal. 1897)). We have held
that
an attorney may not represent a third
party against a former client where there
exists a substantial possibility that
knowledge gained by him in the earlier
professional relationship can be used against
the former client, or where the subject
matter of his present undertaking has a
substantial relationship to that of his prior
representation.
Id. at 474-75 (emphasis added).
Adkins contends that the probate court erred in not
disqualifying Goerig from representing the Estate. He argues
that
"[t]he former client need show no more
than that the matters embraced within the
pending suit wherein his former attorney
appears on behalf of his adversary are
substantially related to the matters or cause
of action wherein the attorney previously
represented him, the former client."
Id. at 475 (quoting T.C. Theatre Corp. v. Warner Bros. Pictures,
113 F. Supp. 265 (S.D.N.Y. 1953)). In the alternative, Adkins
argues that Goerig should be disqualified because he gained
confidential knowledge from Adkins which was later used against
Adkins. Id. at 474-75.
A possibility of conflict always exists when an
attorney represents an estate under different administrators or
representatives. Nonetheless, Adkins has not made a persuasive
showing that Goerig's representation of the Estate would
injuriously affect Adkins because of any matter which might arise
from Goerig's previous professional contact with Adkins.
The Master's recommendation staying the
disqualification petition concluded "[i]t is not clear to the
master what future harm or prejudice Mr. Adkins will suffer."
Adkins did not present any further evidence of prejudice in the
time between the stay order and final closure.6 Adkins has not
shown that Goerig's continuing representation of the Estate under
the co-personal representatives was in any way adversarial or
prejudicial to Adkins' interests.7 Moreover, Adkins fails to
describe any specific confidences that were or might have been
violated by Goerig's continuing representation of the Estate.
Absent such a showing of prejudice, it was within the court's
discretion not to disqualify Goerig. We conclude that the
probate court's dismissal of the disqualification petition was
not an abuse of discretion.
B. The Relinquishment Agreement
Adkins argues that the probate court erred in not
voiding the Relinquishment Agreement on the grounds of fraud,
misrepre-sentation and breach of the fiduciary duty of
disclosure. Goerig argues that because Adkins withdrew his
pleadings alleging fraud-related defenses to the Relinquishment
Agreement, he has abandoned them for the purposes of this appeal.
Adkins contemplated two ways to attack the
Relinquishment Agreement's validity vis-a-vis the trust:8 (1)
challenging the validity of the trust and (2) asserting fraud-
related defenses. With regard to the validity of the
trust, the probate court approved the Master's conclusion that
Adkins "attacks the 'trust' as a sham, but does not present a
showing that the [relinquishment] agreement was entered into
mistakenly, fraudulently, or by coercion. The terms of the
'trust' are of no concern to Mr. Adkins if he has relinquished
any interest in it."9 Although Adkins opposed the Master's
recommendations, there was no subsequent action by the probate
court. Adkins does not appeal this order.
With regard to the fraud-related defenses, Adkins filed
a "Petition to Rescind and Void the 'Relinquishment Agreement'
for the Causes of Fraud and Constructive Fraud," but later
withdrew the motion. Where a party has withdrawn pleadings, he
cannot later appeal based on such grounds. See Ogden v. State,
395 P.2d 371, 372 (Alaska 1964) (holding appeal improper where
trial judge did not rule upon question). Adkins' fraud-related
claims relating to the Relinquishment Agreement, therefore, are
not before this court for review.10
III. CONCLUSION
Because Adkins failed to show that he suffered injury
or prejudice as a result of Goerig's representation of the
Estate, the probate court did not abuse its discretion in
dismissing Adkins' petition to disqualify Goerig. Furthermore,
because Adkins withdrew his challenges to the Relinquishment
Agreement, he cannot renew them on appeal. The probate court's
order closing the Estate is AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 In Alaska, jurisdiction over probate matters is vested
in the superior court. AS 22.10.020(a).
2 AS 13.16.310 provides in part:
A special administrator may be appointed
. . . on the application of any interested
person when necessary to protect the estate
of a decedent before the appointment of a
general personal representative . . . .
AS 13.16.310(1). A special administrator "has the power of a
personal representative . . . necessary to perform the special
administrator's duties." AS 13.16.320.
3 The duties and powers of a personal representative are
detailed in AS 13.16.340-.440. See also Alaska R. Prob. P. 7.
4 The Relinquishment Agreement provided in part:
1. CHET H. ADKINS hereby releases and
relinquishes any claim or demand that he may
have against the Estate . . . .
2. CHET H. ADKINS hereby releases and
relinquishes any claim that he may have to
any of the trust or trust funds and any
assets purchased by such trust funds, to his
sisters CHERYL O'BRIEN and BRENDA ADKINS, to
carry out the trust purposes and further
specifically waives and releases any rights
that he may have, if any, to any of the
proceeds he may receive as a beneficiary of
the trust and any trust funds.
. . . .
5. The Estate and the trust agree to
pay on behalf of CHET H. ADKINS the
attorney's fees as may be required . . . for
the representation of CHET H. ADKINS in an
amount not to exceed $30,000.00 . . . .
The "trust funds"to which paragraph 2 refers include $650,000.00
insurance proceeds.
5 Adkins made the following allegations: (1) Goerig's
representation of the Estate under the co-personal
representatives was inherently adverse to Goerig's representation
of the Estate when Adkins was personal representative; (2) Goerig
did not clarify the scope or termination of the attorney-client
relationship; (3) Goerig's meetings with Brenda Adkins and Cheryl
O'Brien, following Adkins' arrest but before the court
substituted the co-personal representatives, violated client
confidences; and (4) Goerig should have withdrawn when certain
interests of the Estate were apparently adverse to Adkins (i.e.,
misappropriation of funds, the existence of a trust in life
insurance proceeds, and ownership of a certain asset). Adkins
also sought the disqualification of two other attorneys who later
withdrew.
6 Adkins merely opposed the stay and argued that Goerig's
representation would prejudice the Estate.
7 Indeed, the interests of the Estate, to which Goerig
owed a primary duty, remained consistent throughout the tenures
of all representatives.
8 Adkins did not challenge the probate court's approval
of the Master's finding that the Relinquishment Agreement was
void with regard to the Estate. Adkins' attempted renunciation
of his interest in the Estate was not in compliance with the
requirements of AS 13.11.295.
9 Adkins attacked the trust as (1) "a tool to fleece
[Adkins] of his assets for the gain of the co-personal
representatives and their legal council [sic],"and (2) violative
of the statutes applicable to trusts.
10 Adkins' malpractice action against Goerig remains to be
adjudicated.
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