An attorney must pay a portion of attorneys fees for pursuing an undue influence claim even after a deposition in the case made it clear that the claim was frivolous. Glaeske v. Shaw (Wis. Ct. App., No. 03-2568, Jan. 6, 2005).
Elwyn Shaw challenged a trust created by his father, Arthur Shaw, claiming that Arthur's nephew, the trust's beneficiary, exercised undue influence over Arthur. Elwyn retained both a local attorney and Frank Murphy, an attorney in Florida, where Arthur lived at the time of his death. Attorney Murphy was lead counsel. The nephew and the trustee successfully moved for summary judgment, arguing that Elwyn had failed to establish his claim of undue influence. They then moved for sanctions against Elwyn and his counsel on the alleged frivolousness of Elwyn's claim, but Elwyn appealed before a ruling was made on sanctions.
The Court of Appeals of Wisconsin affirmed the circuit court and remanded on the issue of sanctions. The circuit court determined that although Elwyn's undue influence claim was not frivolous at the outset, it became so after the deposition of Arthur's former live-in companion. The court awarded as a sanction $25,880 in attorneys' fees incurred after the live-in companion's deposition. Attorney Murphy was ordered to pay about one-third of this award. He appealed.
The Court of Appeals of Wisconsin affirms, ruling that "a reasonable attorney" should have known that after the live-in companion's deposition, Elwyn's claim faced "overwhelming contrary evidence." At that point, the court finds, it was clear that the case amounted to little more than the companion's "unsupported conclusory opinions." The court goes on to reject Attorney Murphy's arguments with regard to the amount of the fee award. Finally, the court grants the nephew and trustee's motion for their attorneys' fees and costs for the appeal.
For the full text of this decision, go to:https://www.wicourts.gov/html/ca/03/03-2568.htm.
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