Probate Court Lacks Authority To Seize Lawyer’s Property


Probate, guardianship and conservatorship proceedings can be difficult to navigate. Most people utilize lawyers to help with the process, and are well served by having legal representation. Lawyers often serve as protectors of the beneficiaries of those proceedings, and help steer individuals away from mismanagement of estate funds—or worse. Sometimes, though, lawyers can be the problem.

That was the case with Richard D. Goldberg, an Ohio attorney. Mr. Goldberg represented estates and survivors in “wrongful death” cases, in which it was alleged that someone was responsible for the death of an individual. In a number of cases Mr. Goldberg apparently took the money from lawsuits and used the proceeds for his personal living expenses.

In early 1999 the local probate judge in Mahoning County, Ohio—the Hon. Timothy P. Maloney—began his own investigation into Mr. Goldberg’s handling of the wrongful death claims. For the next year Mr. Goldberg was uncooperative with either the judge’s inquiry or the State Bar disciplinary proceedings. In June, 2000, apparently frustrated with his inability to recover money taken by Mr. Goldberg, the probate judge acted on his own initiative.

Judge Maloney first issued an order that the bailiff should search for and seize any property or financial records the bailiff could locate. The next day the bailiff and several law enforcement officers arrived at Mr. Goldberg’s residence and, over the objections of Mr. Goldberg’s wife and daughter and Mrs. Goldberg’s attorney (who arrived shortly thereafter), proceeded to videotape, photograph and catalog the contents of the house. They took four Rolex watches, two Piaget watches, three oriental rugs and a personal computer with them. They also searched and locked a separate warehouse.

Mrs. Goldberg asked the Court of Appeals to quash Judge Maloney’s order and return the impounded items. When that court agreed with her, the probate judge appealed to Ohio’s Supreme Court.

The Supreme Court acknowledged that Mr. Goldberg’s breach of duty harmed his clients and the decedents’ survivors. The Court noted, however, that wrongful death proceeds are not an asset of the decedent’s estate—they belong directly to the survivors. Furthermore, reasoned the Court, Judge Maloney’s power as probate judge did not include the ability to seize property before a final judgment was entered—his power was limited to arresting individuals like Mr. Goldberg and ordering that he be brought before the court to answer questions. While Mr. Goldberg’s actions can be challenged in a proper lawsuit, the probate court did not have power to simply seize his assets pending resolution of that lawsuit. State ex rel. Goldberg v. Mahoning County Probate Court, Sept. 5, 2001.

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