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This Reprimand is based upon Attorney James
J. Ermert’s representation of two clients in
two separate matters. In the first matter,
the personal representative of an estate
retained Atty. Ermert to probate a small
estate on August 14, 1997. There was no
written fee agreement. On October 16, 1997,
Atty. Ermert filed an application for
informal administration. On October 31,
1997, the personal representative opened a
checking account for the estate into which
she deposited the estate’s funds. She pre-
signed two blank checks from the estate’s
checking account and left them with Atty.
Ermert. Atty. Ermert told the personal
representative that he would use them to pay
estate expenses.
On November 4, 1997, Atty. Ermert made
one of the pre-signed checks payable to
himself for $2000 and cashed it. “Retainer”
was written on the memo line. Atty. Ermert
did not obtain the personal representative’s
consent to withdraw these funds from the
estate checking account at the time nor did
he advise the personal representative of the
amount of the fees he intended to withdraw
or when he was going to withdraw them.
On May 21, 1998, the probate court issued
an order to show cause why the inventory had
not been filed within six months of issuance
of the domiciliary letters. At the hearing
on the order to show cause on July 8, 1998,
Atty. Ermert told the court that he had
faxed the inventory to the personal
representative. At a subsequent hearing on
October 9, 1998, Atty. Ermert told the
probate court that he had been in contact
with the personal representative and should
be able to file the inventory soon. At a
review hearing on July 12, 1999, Atty.
Ermert told the probate court that the
inventory would be filed within the week;
however, the general inventory wasn’t filed
until October 11, 1999.
On December 11, 1998, Atty. Ermert made
the second pre-signed check payable to
himself in the amount of $2000 and cashed
it. Atty. Ermert did not obtain the
personal representative’s consent to
withdraw these funds from the estate
checking account at the time nor did he
advise the personal representative of the
amount of the fees he intended to withdraw
or when he was going to withdraw them.
On April 29, 1999, the probate court
issued an order to show cause why the estate
had not been closed within eighteen months
of filing. At the June 11, 1999 order to
show cause hearing, the court gave Atty.
Ermert until July 9, 1999 to file the final
account and petition for approval of
distribution. Atty. Ermert failed to file
either the final account or the petition by
July 9, 1999. At an October 11, 1999 review
hearing, the court extended the time until
October 29, 1999 for Atty. Ermert to file
the petition. Atty. Ermert failed to file
the petition by October 29, 1999.
On March 15, 2000, after Atty. Ermert
failed to appear at a review hearing on
March 13, 2000, the probate court issued an
order for appearance requiring Atty. Ermert
to appear on March 31, 2000. On March 31,
2000, Atty. Ermert provided the court with a
partially completed final account. The
final account was returned to Atty. Ermert
for completion and the matter was
rescheduled for a review hearing on May 5,
2000.
On May 5, 2000, the personal
representative attended the review hearing
after receiving a letter from the probate
court that stated that she needed to appear
in person. Prior to the hearing, she
obtained bank statements and copies of the
two pre-signed checks that showed that both
checks had been made payable to Atty. Ermert
in the amount of $2000. At the hearing, the
judge, the personal representative and Atty.
Ermert discussed the two payments to Atty.
Ermert off the record. As a result, the
judge removed Atty. Ermert as the attorney
for the estate and ordered him to pay
successor counsel’s fees. In a letter dated
May 5, 2000, the successor counsel, on
behalf of the personal representative,
demanded that the entire $4,000 be returned
to the estate. On May 8, 2000, Atty. Ermert
refunded the entire $4,000 to the estate.
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