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Probate Court Lacks Authority To Seize Lawyer’s Property

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.