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In re Estate of DeCarlo12/8/2005
ving deceit, with respect to their control after possession of discoverable matter * * *," was supported by the record. Id. at 35-36. Thus, it found that the trial court did not abuse its discretion.
{ } This case establishes that a trial court may control pro hac vice admission attorneys by removing them from cases when counsel has "engaged in conduct involving deceit" or "truly egregious conduct which is likely to infect future proceedings." Id. at 36. Furthermore, it implicitly indicates that there must be some correlation between the attorney's conduct and the sanction imposed by the court.
{ } In the matter at hand, nothing in the record supports the position that GPW intentionally made any misrepresentations to the probate court. GPW stated that it was a clerical error that it sent net proceeds instead of gross proceeds and it was also a clerical error that it had forwarded the three other checks without forwarding the Application for Approval to Ellen J. DeCarlo for filing in the probate court. This type of clerical error does not to amount to "truly egregious conduct which is likely to infect future proceedings." Accordingly, the probate court's sanction of removing GPW as counsel was not proportionate to the inadvertent and clerical mistakes that were made. Or, in other words, there was no correlation between the sanction and GPW's conduct. As such, the probate court abused its discretion in vacating its prior approval of the litigation agreement and ordering Ellen J. DeCarlo to retain other asbestos litigation counsel. This assignment of error has merit.
ASSIGNMENT OF ERROR NUMBER THREE
{ } "THE PROBATE COURT ERRED BY DECLARING THAT GPW HAD NO RIGHT, EFFECTIVE IMMEDIATELY, TO HOLD ITSELF OUT AS A REPRESENTATIVE OF THE ESTATE."
{ } Under this assignment of error, GPW states that the probate court's order conflicts with an order from Cuyahoga County Common Pleas Court. As explained above, the asbestos litigation is occurring in Cuyahoga County Common Pleas Court. That common pleas court has a general rule that allows the withdrawal of counsel to occur only upon the approval of the court. Cuyahoga Cty. Gen. Div. Loc.R. 10(B). According to GPW, the Cuyahoga County Common Pleas Court, in an order, stated that GPW is to remain as litigation counsel to the asbestos case "pending further Order of this Court or the Court of Appeals, as applicable."
{ } Our disposition of the previous assignment of error renders this assignment of error moot. Thus, this court does not need to address it.
{ } However, even if this court did address the assignment of error, the arguments made under it are not reviewable. The alleged order from Cuyahoga County Common Pleas Court that is attached to GPW's brief is neither time-stamped or certified. Furthermore, and more importantly, it was never made part of the record before this court. Accordingly, this court cannot review the effect of this alleged order on the case.
ASSIGNMENT OF ERROR NUMBER FOUR
{ } "THE PROBATE COURT ERRED BY DIRECTING THE EXECUTRIX TO SUPPLY THE LOWER COURT WITH A REPRESENTATION AGREEMENT WITH ANOTHER ASBESTOS LITIGATION COUNSEL WITHIN THIRTY DAYS."
{ } This assignment of error is a reiteration of the above arguments made under the other assignments of error -- the probate court acted beyond its power in requiring Ellen J. DeCarlo to choose another asbestos litigation attorney. As we have already found merit with the second assignment of error, the additional and repetitive arguments made under this assignment of error do not need to be addressed.
{ } For the foregoing reasons, the judgment of the probate court is
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