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In re Estate of DeCarlo12/8/2005
estator may compel the executor of his or her estate to select an attorney so designating in the testator's last will and testament." Deardoff, 10 Ohio St.3d at 108. The Deardoff court held that such language in the will is merely advisory and not binding on the executor. It reasoned that the attorney-client relationship is personal and usually involves confidential matters. Id. at 109. As such, it concluded that "the relationship demands complete faith and trust between the parties," and thrusting such a relationship upon the client against his will "would be ill-conceived and not conducive to an atmosphere of reciprocal confidence." Id. Thus, for that reason it stated that forcing an attorney of the testator's choice on the executor would interfere with the administration of the estate. Id.
{ } In Estate of Ross, the executrix had her own counsel to pursue the wrongful death action. The beneficiaries of the estate moved to intervene and asked the probate court to name their counsel as co-counsel in the wrongful death action. The probate court denied the motion by stating that the executrix, as the personal representative, had the right to select the counsel for that action. On appeal, the appellate court affirmed the probate court's decision. The court explained that wrongful death actions shall be brought in the name of the deceased's personal representative and that courts have interpreted this to mean that only the personal representative has the legal capacity to sue under this wrongful death statute. Estate of Ross, 65 Ohio App.3d at 400. It went on to explain that the representative is like the executor. Id. at 400-401. While it affirmed the probate court's ruling on the request to have the beneficiaries counsel added as co-counsel in the wrongful death action, the appellate court cautioned that the representative's discretion in choosing his attorney and directing the course of the litigation is not unlimited. Id. at 401. It added that the representative could be removed if his conduct is not in the best interest of the beneficiaries. Id.
{ } These cases are factually distinguishable from the matter at issue. Both cases deal with someone other than the court directing the executor/representative as to who should be the attorney representing the estate/ beneficiaries. Regardless, both cases stand for the proposition that the executrix has the authority to determine who she wants to represent the estate in the wrongful death proceedings, i.e. the asbestos litigation.
{ } Yet, the above analysis does not necessarily mean that the executrix's choice could not be removed. The Ohio Supreme Court in Royal Indemn. Co. v. J.C. Penney Co., Inc. (1986), 27 Ohio St.3d 31, held that, " trial court may revoke pro hac vice admission of an attorney who has engaged in egregious misconduct which could taint or diminish the integrity of future proceedings." Id. at paragraph one of the syllabus.
{ } In Royal Indemn. an out of state attorney's pro hac vice admission was revoked because that attorney told the trial court that certain subpoenaed documents did not exist when in fact they did exist and were in his file at the time that the representations were made. In upholding the trial court's revocation of the pro hac vice admission, the Court explained that a trial court's "power to protect its pending proceedings includes the authority to dismiss an attorney who cannot, or will not, take part in them with a reasonable degree of propriety. Laughlin v. Eicher (D.D.C. 1994), 145 F.2d 700." Id. at 34. It then added that the trial court's conclusion that, " he records here clearly establish that the law firm of Cozen, Beiger, & O'Connor and its members have engaged in conduct invol
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