Bush v. Lawrence

The court has jurisdiction to hear the plaintiff’s suit against the trustee of her late husband’s trust. One of the trust defendants’ attorneys is likely to serve as a witness and thus may not serve as an advocate at trial or depositions. He may otherwise continue to provide counsel in the case.

The plaintiff’s late husband died on the day this suit was filed. Describing her 67-year marriage as “rocky,” she alleges that her now-deceased and often estranged husband’s 154-acre farm  was purchased with her assets and marital assets; yet her husband fraudulently transferred it to an inter vivos trust with the express intent of excluding her from the assets. The plaintiff has brought claims against the trustee and beneficiaries.

The probate exception does not divest a federal court of subject-matter jurisdiction unless a probate court is already exercising in rem jurisdiction over the property at the time the plaintiff files her complaint in federal court. Because she filed her original complaint in this matter before the probate court ever took any custody of the farm, the probate exception does not apply.

The court’s jurisdiction is also not threatened by the fact that the husband’s personal representative wasn’t named as an indispensable party. The defendants point to no authority to indicate that failure to include an indispensable party is a jurisdictional defect. Further, no party has established any grounds for this court to abstain from exercising its jurisdiction.

As for one of the trust defendant’s counsel who may be called as a witness in this case, the witness-advocate rule makes clear that he may not serve as an advocate at trial, or at any evidentiary hearing, and he may not take or defend depositions. However, the weight of authority supports permitting the attorney to continue to be involved in the case. So long as the fact-finder is not aware of his dual role, his continued representation does not run afoul of Virginia Rule of Professional Conduct 3.7. Accordingly, the court will not require him to withdraw entirely.

Motions to dismiss denied; motion to disqualify granted in part and denied in part.

Bush v. Lawrence, No. 7:18cv42, Mar. 29, 2019. WDVA at Roanoke (Dillon).

Categories: Opinions, U.S. District Court - Western District of Virginia

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