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In re Estate of DeCarlo12/8/2005
ed the administration of this Estate. In this regard, Goldberg, Persky has accepted 'settlements,' without their first obtaining the prior, written authority of the Court, and it has deducted attorneys' fees and expenses, without the prior approval of the Court." (11/22/04 J.E.).
{ } The court then vacated its order approving the representation agreement between GPW and Ellen J. DeCarlo, it ordered that GPW immediately comply with the provisions of Loc.R. 70.5 and 70.6, and it ordered Ellen J. DeCarlo to have within thirty days a representation agreement with another asbestos litigation attorney. GPW appeals from this decision raising four assignments of error.
ASSIGNMENT OF ERROR NUMBER ONE
{ } "THE PROBATE COURT ERRED BY FINDING THAT GPW VIOLATED MAHONING COUNTY PROBATE COURT RULE 70.5(B)."
{ } This assignment of error deals strictly with Loc.R. 70.5(B). This rule states:
{ } "No fiduciary, or any person purporting to act for them or the estate, shall have any authority to execute or approve of the execution of releases, or another document which may reflect the release or waiver of any rights of the estate or next of kin, in favor of any defendant under such claims without first obtaining the prior written approval and authority of the Court to do so. The fiduciary and attorney of record for the estate must, with the full cooperation of the litigation counsel, first apply for such authority by completing and filing an Application For Authority To Execute Release Under Special Litigation Claims [Local Form 70.5(B) M.C.]. In doing so they shall:
{ } "(1) Disclose the identity of the settling defendant;
{ } "(2) Disclose the excepted settlement sum to be paid by that defendant;
{ } "(3) Disclose the anticipated date upon which that defendant is to pay and satisfy such settlement; and
{ } "(4) Append a copy of the proposed release for the identified defendant to that Application, or a certification by litigation counsel as to the existence of such a release or settlement."
{ } GPW argues that nothing in the record suggests that the executrix or any other person purporting to act on her behalf executed or approved the execution of releases. Therefore, according to GPW, it did not violate the local rule.
{ } GPW's argument is unpersuasive. When it distributed the four checks for the settlement to Ellen J. DeCarlo to put into an interest bearing account, it was executing a release and was not acting in compliance with Loc.R. 70.5(B). It admitted at the hearing that it probably was a clerical error on its part that the Application for Approval was not sent to Ellen J. DeCarlo's attorney, Attorney Ortenzio, for submission to the probate court. Thus, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
{ } "THE PROBATE COURT ERRED BY VACATING ITS ORDER APPROVING GPW AS THE FIDUCIARY'S LITIGATION COUNSEL."
{ } GPW argues that a fiduciary has "unfettered discretion" to appoint counsel to represent that fiduciary during the administration of the estate. It references Ellen J. DeCarlo's choice to have GPW continue to represent her husband's interest and her own in the asbestos action. The probate court approved this agreement pursuant to its authority under Ohio Sup.R. 71(I). GPW argues that there is no authority for the proposition that the probate court can vacate that order and make the fiduciary retain other counsel. It cites In re Estate of Deardoff (1984), 10 Ohio St.3d 108, 109, and In re Estate of Ross (1989), 65 Ohio App.3d 395, in support of this proposition.
{ } Deardoff dealt with whether "a t
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