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Counsel Defense

How Does This Story Play Out?

Take your medicine.

Raise the

Advice of

Counsel

Defense

Walter White , deceased

Can the beneficiary sue the agent directly?

Date of Death: 9-29-13

Hank Schrader

"The Bank"

Co-PR

Can a beneficiary bring an action on behalf of the trust?

Did Hank & the Bank act

reasonably in employing Gus and Saul?

What about privity?

Did they properly establish the

scope & terms of their delegation?

Skyler White

Flynn "George" White

Did they properly review & monitor their agents' actions?

The Surviving Spouse

DOMA Majordomo

Privity? What privity?

The Bag-O-Cash

What about the agent?

So . . . .

What if Gus & Saul can't pay?

Don't forget the beneficiaries.

The defense is not dependent on the

professional having committed malpractice.

What if there's nothing left to pay

for the malpractice case?

What should a fiduciary consider?

My poor, George. . .

I mean Flynn.

Do they have to bring a malpractice case?

Gustavo Fring, CPA

I know.

What the #$*@?

A final look through the View Master . . .

It's all good, man.

The Service

The Accountant's Vice

The Lawsuit

Session II:

The DOMA Coma

must . . .

stay . . .

awake . . .

The Privilege

The Advice of

Restatement (Second) of Trusts s. 171

Ye Olde Delorian

Restatement (Third)

of Trusts s. 80

Prudent fiduciary of comparable skills under the circumstances

F.S. 733.612(19)

PR can employ agents and rely

on their advice without

independent investigation

F.S. 736.0816(20)

Trustees, too.

The Estate of

Walter White

Common Law

Delgate

ministerial

acts only

Elsewhere

Estate of Gangloff

Missouri

Estate of Smith

Nebraska

Estate of Markus

What, me worry?

Uniform Trustees'

Power Act

Restatement (Second) of Trusts s. 225

In Theory & Practice

Gudschinsky v. Hartill

Alaska

Waiver

Get back in that bag!

Scope of Waiver: Bresnahan

Waiver of

Tax Advice

Sword and Shield?

Placing a privileged communication at issue

Waiver is limited

Scope of Waiver: Paradise Divers

Reliance Defense in FL

Wohl v. Lewy

Get By With A Little

Help From Your Friends

Bad hire?

Selecting the Agent

Let's go behind

With great power comes

Famous Jameis Winston

2013 Heisman Trophy Winner

Care, Skill and Caution in:

  • Selection
  • Establishing scope and terms of delegation
  • Periodic review

You can't delegate your entire job.

great responsibility.

I think we can.

I think we can.

Awww, man. Who am I kidding?

Good thing I've

got LSU in the parlay.

the curtain.

The "Delegation" or "Reliance" Defense for Fiduciaries

Elements

Full Disclosure of Facts

Good Faith Reliance

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