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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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Hi, RayAnswers: The defendant in my legal malpractice lawsuit

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Hi, RayAnswers: The defendant in my legal malpractice lawsuit showed me his "hand" yesterday by threatening a counter claim against the ESTATE (and me) because he was the executor of the estate, with an alleged pre-judgment remedy to attach my distribution from the estate and/or try to collect legal fees. As you know, I withdrew my Complaint leaving this defendant with no recourse. I have named four (4) entities in my Complaint as follows:
John Doe, Atty at Law
John Doe, Fiduciary/Executor
John Doe, Esq.
John Doe, an Individual
My question is: When I re-file my Complaint should I remove the defendant "John Doe, Fiduciary/Executor" to prevent John Doe from suing the estate? Also, all of his invoices were submitted by his P.C. and he charged the estate over $50K in "Attorneys Fees". Will the remaining three (3) defendants be sufficient to allege my eight (8) counts including breach of fiduciary duty, abuse of process, collusion, malicious prosecution, vexatious litigation, violation of prof. conduct rules and IIED. (this guy is very, very bad).

RayAnswers :

Thanks for your question and good afternoon.

RayAnswers :

If you want to be able to collect from the estate here you would include the executor and the estate.If you want to remove them here from the suit if you don't name them then they would not be a party and could not counterclaim.Thats a tactical decision here on your part about whether to include them or not.

RayAnswers :

You should not necessarily be intimidated out of filing against the executor and the estate as certainly they are "pockets of assets" that you could recover from.If they were to file a counter claim they would have to be able to prove it up or they don't recover anything.

RayAnswers :

But that is certainly an option if you do not want to try and recover from the executor or the estate but rather them personally here.

RayAnswers :

And even if he were to attach assets here he still has to prevail, if not then you get them as well as any judgment against the parties.

Customer:

Hi!

RayAnswers :

Hi..

RayAnswers :

You also have the right here to file complaint against the lawyer with the state bar as well.

Customer:

I am one of the beneficiaries.

RayAnswers :

If you were to prevail then you may be able to recover against his share as well.This is a two edged sword.

RayAnswers :

Here is information about filing a grievance against the lawyer involved.

Customer:

I am suing the executor of my mother's estate. He was removed for misconduct, etc.

Customer:

Thank you.

RayAnswers :

Then you woudl have the option here to sue him personally for his misdeeds and leave out the estate.

Customer:

If I don't include "fiduciary/executor" then he will be responsible for what he has done in his capacity as an attorney, yes?

RayAnswers :

Or to include the estate as a party.

RayAnswers :

Yes he would and any judgment is collectible against him individually.Also if he is a lawyer here then he may have malpractice coverage as well .

RayAnswers :

So likely he is solvent and you can add a professional complaint to the state here.

Customer:

That is what I am hoping. Thanks, Ray!

RayAnswers :

Good luck , so sorry you are having to deal with this guy.

RayAnswers :

Thanks for letting me help you today.

Customer:

I plan to file a grievance too...following the outcome of the suit. Thanks again.

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