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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenneth P. Jacobus, P.C. and Kenneth P. Jacobus v. Uwe Kalenka, Personal Representative of the Estate of Eric Wayne Kalenka (5/22/2020) sp-7452

Kenneth P. Jacobus, P.C. and Kenneth P. Jacobus v. Uwe Kalenka, Personal Representative of the Estate of Eric Wayne Kalenka (5/22/2020) sp-7452

          Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

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          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                     

          corrections@akcourts.us.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



KENNETH  P.  JACOBUS,  P.C.  and                                     )  

KENNETH  P.  JACOBUS,                                                )    Supreme Court No. S-16977  

                                                                                                          

                                                                     )  

                               Appellants,                           )    Superior  Court  No.  3AN-04-00640  PR  

                                                                     )  

          v.                                                         )                        

                                                                          O P I N I O N  

                                                                     )  

                                                                                                           

                                                                   e  

UWE KALENKA, Personal Representativ  )                                    No. 7452 - May 22, 2020  

                                                  

of the Estate of ERIC WAYNE KALENKA, )
  

                                                                     )
  

                               Appellee.                             )
  

                                                                     )
  



                                  

                     Appeal f                                                                            

                                  rom the Superior Court of the State of Alaska, Third  

                                                                                           

                     Judicial District, Anchorage, Mark Rindner, Judge.  



                                                                                                           

                     Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,  

                                                                                                               

                     Anchorage, for Appellants.  Alfred Clayton, Jr., Clayton &  

                                                                     

                     Diemer, LLC, Anchorage, for Appellee.  



                                                                                                           

                     Before:         Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                  

                     Carney, Justices. [Stowers, Justice, not participating]  



                                       

                     CARNEY, Justice.  



I.        INTRODUCTION  



                                                                                                                              

                     After a conflict of interest between an attorney and a long-time client arose  



                                                                                                                          

during settlement negotiations, the attorney filed a confidential motion with the superior  



                                                                                                                                       

court criticizing his client.  The client discharged the attorney and hired new counsel.  



                                                                                                                                 

But the attorney continued to control the settlement funds and disbursed himself his fee,  


----------------------- Page 2-----------------------

even though the amount was disputed by the client.                                                                        The court found that the attorney's                       



actions had violated the rules of professional conduct and ordered forfeiture of most of                                                                                                               



his attorney's fees.                          We affirm the holding of the superior court.                                                               



II.             FACTS AND PROCEEDINGS              



                A.              Facts  



                                Kenneth Jacobus represented the estate of Eric Kalenka for over a decade                                                                                   

                                                                                                   1    Eric's divorced parents, Uwe Kalenka and  

after Eric Kalenka was murdered in 2004.                                                                                                                                                           



Dorcas  Teall,  were  the  estate's  beneficiaries;  Uwe  Kalenka  was  the  personal  

                                                                                                                                                                                      



representative.  Uwe Kalenka retained Jacobus to represent him in the administration of  

                                                                                                                                                                                                       



his deceased son's estate and to bring claims against insurance companies and third  

                                                                                                                                                                                                



parties.  Kalenka agreed to pay Jacobus's fees by a combination of an hourly rate for  

                                                                                                                                                                                                     



work relating to the administration of the estate and a share of any recovery from the  

                                                                                                                                                                                                     



claims against insurance companies and third parties.  

                                                                                                                                



                B.              Proceedings  



                                Three cases arose fromEric's murder: a criminal case in which Jack Morell  

                                                                                                                                                                                             

was convicted of second-degree murder;2                                                                                                                                                         3  

                                                                                                 a civil suit against an automobile insurer;  and  

                                                                                                                                                                                                    



a civil suit for wrongful death against the bar that had served alcohol to Morell (the  

                                                                                                                                                                                                  



                1               See Morrell v. State                           , 216 P.3d 574, 575 (Alaska App. 2009);                                                           Kalenka v.   



Jadon, Inc.                , 305 P.3d 346, 347-48 (Alaska 2013).                                      



                2              Morrell, 216 P.3d at 575.  

                                                                                 



                3              Kalenka v. Infinity Ins. Cos., 262 P.3d 602, 602 (Alaska 2011) (holding for  

                                                                                                                                                                                                     

insurer because policy did not cover stabbing and killing by uninsured driver after minor  

                                                                                                                                                                                              

collision).  



                                                                                                   -2-                                                                                          7452
  


----------------------- Page 3-----------------------

Jadon litigation).  Jacobus prevailed in reversing summary judgment for the bar in the                                                      



                                                                                               4  

Jadon litigation and entered into settlement negotiations.                                        



                      In 2015 Jacobus filed an ex parte "Confidential Status Report" with the  

                                                                                                                                            



superior court.  In it he stated that although the Jadon litigation appeared to be near  

                                                                                                                                          



settlement, he was concerned that Kalenka was unable "to reasonably evaluate any  

                                                                                                                                           



settlement offer." Jacobus believed that Kalenka'semotional stateanddesirefor revenge  

                                                                                                                                     



would lead him to "refus[e] to accept a reasonable settlement offer," and result in a trial  

                                                                                                                                           



with a "substantial chance of a defense verdict." Jacobus believed that refusing to settle  

                                                                                                                                         



would be contrary to the best interests of the estate and the estate's other beneficiary,  

                                                                                                                             



Teall. Jacobus was also concerned he would not collect his fee given the low likelihood  

                                                                                                                                 



of success at trial.  He therefore concluded that he could no longer assist Kalenka.  

                                                                                                                                           



                      Jacobus  noted  that  "this  report  is  not  being  served  on  anyone  else,  

                                                                                                                                         



including . . . Kalenka, my client."  He asked the court to permit him to advise Teall of  

                                                                                                                                              



the status of the case, despite Kalenka's explicit order not to involve Teall "in this estate  

                                                                                                                                        



matter  at  all."             He  also  asked  the  court  to  determine  whether  a  new  personal  

                                                                                                                                  



representative for the estate should be appointed and whether the personal representative  

                                                                                                                          



should be ordered to accept the proposed settlement offer.  Finally, Jacobus requested  

                                                                                                                                 



that the court determine whether he could continue as Kalenka's attorney.  

                                                                                                                              



                      In response the court ordered Jacobus to serve Kalenka with a copy of the  

                                                                                                                                             



status report.   It also denied Jacobus's request for an order allowing him to discuss  

                                                                                                                                     



confidential  information  with  Teall,  specifying  that  he  could  "not  disclose  any  

                                                                                                                                          



confidential  information  to  .  .  .  Teall  or  her  attorney  unless  authorized  to  do  so  

                                                                                                                                             



by . . . Kalenka."  Additionally, the court scheduled a confidential hearing to discuss  

                                                                                                                                     



whether Jacobus had a conflict of interest that necessitated his withdrawal and whether  

                                                                                                                                    



           4  

                                                                                   

                      Kalenka v. Jadon, Inc., 305 P.3d at 352.  



                                                                      -3-                                                                    7452  


----------------------- Page 4-----------------------

                                                                                                                              

Kalenka should be removed as the estate's personal representative.   It ordered both  



                                                                    

Jacobus and Kalenka to attend the hearing.  



                                                                                                                             

                    The hearing was held in September 2015.   Jacobus and Kalenka were  



                                                                                                                                

present; Kalenka had retained a new attorney, Alfred Clayton.  The court ordered the  



                                                                                                                                 

substitution of counsel, replacing Jacobus with Clayton.  The next day Jacobus filed an  



                                                                                                    

attorney's lien on funds related to his representation of Kalenka.  



                                                                                                                                      

                    Kalenka,  represented  by  Clayton,  then  settled  the  Jadon  litigation.  



                                                                                                                         

Following the settlement Clayton wrote Jacobus.   This October 2015 letter advised  



                                                                                                                               

Jacobus that "[t]he settlement check should soon be delivered to [Jacobus's] office" and  



                                                                                                                               

authorized him "to deposit [it] into [Jacobus's] trust account." The letter also stated that  



                                                                                                                             

Jacobus was "not authorized to disburse any of the settlement funds from trust until  



                                                                                                  

disputes relating to [his] claim for fees and costs are resolved."  



                                                                                                               

                    Clayton's letter then addressed Jacobus's "claim for a . . . contingent fee  



                                                                                                           

from the settlement."  The letter listed events that had occurred since "the confidential  



                                                                                                                         

probate filing" and stated that as a result "it is . . . Kalenka's position you are entitled  



                                                                                                                                 

only to a fee in the amount of $83,333.33" rather than the $112,500 Jacobus claimed he  



                  

was owed.  



                                                                                                                          

                     Jacobus responded the next day with a letter stating he planned to deposit  



                                                                                                                                

the settlement funds into an interest-bearing trust account which he would set up.  He  



                                                                                                                    

also stated that he would "disburse the funds to which there is no dispute."  



                                                                                                                      

                    Clayton then wrote to Jacobus requesting a formal accounting of Jacobus's  



                                                                                                                            

costs and fees and his proposal for a distribution of the settlement check.  In this letter,  



                                                                                                                

Clayton expressed concern regarding Jacobus's "intentions on a plan for disbursement  



                                                                                                                                

of funds" and clarified that Jacobus was "not presently authorized to disburse any of the  



                            

settlement fund."  



                                                                -4-                                                         7452
  


----------------------- Page 5-----------------------

                                                                                                                                 

                     Jacobus responded a few days later in a lengthy letter with a number of  



                                                                                                                                

attachments.  The letter informed Clayton that Jacobus had already acted regarding the  



                                                                                                                    

settlement  proceeds  and  had  created  a  new  trust  account,  the  "Kalenka  Settlement  



                                                                                         

Proceeds Trust," with himself as trustee.  Attached to the letter were an ethics opinion  



                                                                                                                    

from the Alaska Bar Association and the Declaration of Trust for the newly established  



                                                                                                                                  

trust.  The Declaration stated that the trust was created because "it appears necessary to  



                                                                                                                           

protect the interests of all people who are involved with . . . Kalenka."   The trust's  



                                                                                                                              

purposes  included  protecting  Teall's  share  of  the  inheritance  and  Jacobus's  and  



                                                                                      

Clayton's fees and costs from interference by Kalenka.  



                                                                                                                                 

                    On November 23 Clayton responded to Jacobus's "astonishing letter." He  



                                                                                                                                

again requested the formal accounting of Jacobus's costs and fees he had sought in his  



                                                                                                                             

first letter. He then objected to Jacobus's "extraordinary" actions in creating a new trust,  



                                                                                                                         

unilaterally determining its purposes, and declaring himself its sole trustee, serving  



                                           

without bond.  He accused Jacobus of "usurp[ing] the role of [the judge] who actually  



                                                                                                                  

presides over the Probate proceeding." Clayton described as "[e]ven more astonishing"  



                                                                                                              

Jacobus's  declaration  that  the  "first  thing"  he  intended  to  do  was  "communicate  



                                                                                                                                      

with . . . Teall" after the court had expressly denied his request for permission to do so.  



                                                                                                                         

                    Claytonrequested thatJacobuspreserveall evidencerelating to thecreation  



                                                                                                                            

of the new trust, that he provide Clayton with copies of all documents relating to the  



                                                                                                                               

trust,  and  that  he  preserve  all  documents  and  files  that  related  in  any  way  to  his  



                                                                                                                                      

representation of Kalenka.  He concluded by urging Jacobus to reconsider his actions.  



                                                                                                                            

                    A month after receiving Clayton's letter, Jacobus filed a "Notice of Intent  



                                                                                                                         

to Violate Court Order," asserting that Alaska Rule of Professional Conduct 1.15(d)  



                                                                                                                              

required  him  to  violate  the  August  order  that  forbade  him  from  disclosing  any  



                                                                                                     

confidential information to Teall without Kalenka's permission.  Jacobus claimed that  



                                                                -5-                                                         7452
  


----------------------- Page 6-----------------------

he was ethically required both to promptly notify Teall that he had received funds and                   



to distribute the amount to which Teall was entitled as a beneficiary of the estate.                                                                                                                  

                                                                                                                                                                                 5  as well as a  

                                After receiving Jacobus's notice and several other pleadings,                                                                                                                



"request from the personal representative [of the estate]," the court issued two orders.  

                                                                                                                                                                                                                  



The first, dated December 30, was an Order for Deposit of Settlement Fund in Registry  

                                                                                                                                                                                            



of Court.  That order directed Jacobus, within three days, to issue a check to the clerk of  

                                                                                                                                                                                                           



court in the amount of the entire balance of the new trust, including accrued interest, and  

                                                                                                                                                                                                        



to terminate the trust.  

                                                     



                                The court's other order, issued the same day, addressed "the . . . pleadings  

                                                                                                                                                                                       



from . . . Jacobus, who no longer represents anyone in this proceeding and is apparently  

                                                                                                                                                                                       



filing [them] on his own behalf."  After ordering Jacobus to serve Clayton with any  

                                                                                                                                                                                                       



pleadings that he had attempted to file ex parte, the court denied Jacobus's request for  



permission to reveal confidential information to Teall.  The court rejected his argument  

                                                                                                                                                                                         



that he was ethically required to violate the court's order, reiterating that he was only  

                                                                                                                                                                                                     



forbidden to reveal confidential information.  The court pointed out that "the fact that a  

                                                                                                                                                                                                             



settlement has been reached . . . is a matter of public record."  

                                                                                                                                                    



                                It then rejected Jacobus's position that "he owes some duty to . . . Teall and  

                                                                                                                                                                                                        



that he and he alone can protect her from harm" as "nonsense."  The court agreed with  

                                                                                                                                                                                                     



Clayton's statement in his November 23 letter that Jacobus was usurping the court's role  

                                                                                                                                                                                                       



and making its task to probate the estate more difficult.  

                                                                                                                                      



                5               Jacobus additionally filed an ex parte motion to vacate the court order, a                                                                                                   



proposed order granting his ex parte motion, an accounting of the settlement funds                                                                                                                

pursuant toAlaskaRuleofProfessional Conduct 1.15(d), and an opposition to Kalenka's                                                                                                     

request for sealed proceedings.                                             



                                                                                                     -6-                                                                                            7452
  


----------------------- Page 7-----------------------

                         Turning to the Alaska Bar Association Ethics Opinion on which Jacobus   



                             6  

claimed to rely,                                                                                                                                         

                                the court observed that "he seems to ignore [a] pertinent part of that  



                                                                                                                                                    

Opinion" which specifically stated that "[t]he attorney does not . . . have a duty to advise  



                                                                                                                                                       

heirs or creditors of the estate, and is prohibited frominforming beneficiaries or the court  



                                                                                                                                                 

of facts that would be adverse to the personal representative, or from taking any position  



                                                                                                                                      

hostile to the personal representative's interests."  The court then stated that Jacobus's  



                                                                                                                                       

actions "appear to violate this duty."  The court advised Jacobus that his interpretation  



                                                                                                                                            

"[wa]s wrong and that any violation of this court's order [would] result in significant  



                       

sanctions."  



                                                                                                                                                            

                         Jacobus moved on January 7 to vacate the court's order requiring him to  



                                                                                                                                                                  

deposit  the  settlement  fund  in  the  court  registry  and  to  enter  a  substitute  order.  



                                                                                                                                                   

Responding to the court's statement that he no longer represented anyone in the matter,  



                                                                                                                                                 

Jacobus asserted that he had standing to participate because Kalenka's actions affected  



                                                                                                                                                                  

him directly and because he could be "correctly characterized as a creditor of the estate."  



                                                                                                                                                       

Clayton opposed the motion on January 20, arguing that the December 30 orders were  



                                                                                                                                                  

appropriate because they "eliminated confusion, reduced the prospect of future dispute,  



                                                                                                                                                            

and admonished Jacobus against actions which 'harm the beneficiaries while serving no  



                                             

discernible purpose.' "  



                                                                                                                                                        

                         On  January  27  the  court  convened  a  confidential  status  hearing  and  



                                                                                                                                                

discussed  Jacobus's  actions,  his  January  7  motion,  and  how  to  proceed.                                                                Clayton,  



                                                                                                                                                           

Jacobus, and Kalenka were present. After admonishing Jacobus for failing to deposit the  



                                                                                                                                              

money in the court registry despite the December 30 order and for filing a proposed  



            6            See  Alaska Bar Ass'n Ethic Comm., Ethics Op. 91-2 (1991) (discussing                                                                    



responsibilities of attorney representing personal representative of estate when conflict                                                         

exists between personal representative and heirs).                                           



                                                                             -7-                                                                      7452
  


----------------------- Page 8-----------------------

                                                                                                                         

order despite not representing any party in the case, the court ordered Jacobus to deposit  



                                                                                                        

the $337,500 settlement fund into the court registry by January 29.  



                                                                                                                        

                    On January 28 and 29 Jacobus made two payments into the court registry  



                                                                                                                          

totaling $287,537.15.  On February 5 he filed a motion requesting that Kalenka clarify  



                                                                                                                                

the amount he believed Jacobus was owed in fees.  Jacobus further requested that he be  



                                                                                                                             

authorized to retain the remaining $50,000 and that $33,333.33 be refunded to him from  



                                                                                                                        

the court registry, alleging that Kalenka admitted in his October 2015 letter that Jacobus  



                                                                                                                               

was entitled to this amount.  Jacobus explained that he had used $50,000 to pay for  



                                                                                                                            

expenses he had incurred and was unable to repay that amount by the date the court  



                

ordered.  



                                                                                                                               

                      On February 18 Kalenka moved to have Jacobus held in contempt for  



                                                                                                                      

failing to pay the entire amount into the court registry, and requested an order requiring  



                                                                                                                              

Jacobus to provide the records related to his handling of the settlement funds up to that  



                                                                                                                               

point. In early March the court again ordered Jacobus to deposit the entire amount of the  



                                                                                                                                

settlement in the court registry and scheduled a hearing for March 29 for Jacobus to  



                                                                                

show cause why he should not be held in contempt.  



                                                                                                                               

                    Shortly after the March order Jacobus filed a notice of claim against the  



                                                                                                              

estate for $112,500 from the Jadon settlement as well as an additional $15,000 claim  



                                                                                                                                     

from the insurance case which Jacobus argued "could have settled for at least $45,000."  



                                                                                                                              

He also filed claims for punitive damages, fees for appellate work, and fees from any  



                                                                                                                               

future recovery.  On the same day, he made two deposits into the court registry - the  



                                                                                                                          

first for $30,000 and the second for $20,000 - in compliance with the court's March  



                                                                                                          

order requiring him to deposit the remaining $50,000 with the court.  



                                                                                                                        

                    The  court  held  the  contempt  hearing  on  March  29  and  again  ordered  



                                                                                                                                

Jacobus to provide all records related to his handling of the settlement proceeds and all  



                                                               -8-                                                         7452
  


----------------------- Page 9-----------------------

files related to the Kalenka cases to Clayton.                                                         The court also found the motion for                                         



contempt moot, as Jacobus had deposited the funds.                                                                



                             In   April   Kalenka   petitioned   the   court   to   partially  disallow   Jacobus's  

                                      7      Kalenka  argued  Jacobus  was  entitled  to  only  the  agreed  upon  

creditor's   claims.                                                                                                                                                           



contingency fee and that he was not entitled to recover on any claims other than the  

                                                                                                                                                                                   



contingency fee for the Jadon litigation.  Kalenka also argued Jacobus was entitled only  

                                                                                                                                                                                 



to the agreed 25% of $250,000 (or $62,500), the settlement amount Jacobus had secured  

                                                                                                                                                                          



before being removed as counsel, rather than 25% of the $337,500 that the estate actually  

                                                                                                                                                                          



received.  In addition he argued Jacobus's recovery should be offset by costs incurred  

                                                                                                                                                                        



by the estate following his replacement as counsel.  

                                                                                                               



                             In July the court awarded Jacobus a 25% contingency fee from the actual  

                                                                                                                                                                              



amount of the Jadon settlement, $337,500.  The court then reduced Jacobus's fee of  

                                                                                                                                                                                     



$84,375 by the amount of expenses incurred by the estate after Jacobus was removed as  

                                                                                                                                                                                      



counsel, as well as by the amount of expenses the estate was expected to incur in the  

                                                                                                                                                                                    



future.   The court ordered the resulting $46,107.43 to be disbursed from the court  

                                                                                                                                                                               



registry to Jacobus.  The court denied Jacobus's request for other fees he claimed were  

                                                                                                                                                                                



due.  

           



                             Jacobusmovedfor relieffromthecourt'sJuly orderinlateDecember 2016.  

                                                                                                                                                                                            



He asked not to be ordered to pay for the estate's new attorney and that he be awarded  

                                                                                                                                                                        



his full fees and associated costs from the Jadon and insurance cases.  Jacobus argued,  

                                                                                                                                                                          



among other things, that relief was necessary because his procedural due process rights  

                                                                                                                                                                              



had been violated by the court.  

                                                                     



              7              See  AS 13.16.475(b) ("Upon the petition of the personal representative or                                                                               



of a claimant in a proceeding for the purpose, the court may allow in whole or in part any                                                                                         

claim or claims presented to the personal representative or filed with the clerk of the                                                                                             

court . . . .").         



                                                                                          -9-                                                                                  7452
  


----------------------- Page 10-----------------------

                                                           Afewdays later, Jacobus filed a motion for disbursement ofthe$46,107.43                                                                                                                                                                                                          



that the court had ordered in July. Kalenka opposed Jacobus's motions and filed a cross-                                                                                                                                                                                                                                                                      



motion to further reduce Jacobus's fee due to the additional costs the estate had incurred                                                                                                                                                                                                                                                              



responding to Jacobus's filings.                                                                                                              



                                                           At a status conference held in March 2017, the court denied Jacobus's                                                                                                                                                                                                                



motion for distribution of funds and scheduled a confidential hearing for August to                                                                                                                                                                                                                                                                                                



discuss the parties' claims against each other.  The court stated it would determine the                                                                                                                                                                                                                                                                                       



amount of funds to which the parties were entitled.                                                                                                                                                                                        At the August hearing Jacobus,                                                                             



Kalenka, and Clayton testified about the history of the case.                                                                                                                                                                                                                            The court also heard                                                     



argument concerning the allocation of fees and potential violations of Jacobus's duty of                                                                                                                                                                                                                                                                                            



loyalty to Kalenka.                                                                   



                                                           On September 18 the court issued a final order resolving Jacobus's claims                                                                                                                                                                                                                            



against the estate.                                                             After defining the issue as "what fee an attorney is entitled to when                                                                                                                                                                                                                



he or she is discharged for cause or without cause," the court noted that there was little                                                                                                                                                                                                                                                                              



relevant Alaskan law.                                                                             It therefore turned to case law in other states.                                                                                                                                                           After considering   



the approaches taken by other courts, the superior court determined that the test used by                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                        8       and  the  Maryland  Court  of  

the   Louisiana   Supreme   Court   in   O'Rourke   v.   Cairns,                                                                                                                                                                                                                                                                                                                  



                                                                                                                                         9  

Appeals in Somuah v. Flachs,  was the rule "most persuasive in light of precedent,  

                                                                                                                                                                                                                                                                                                                                              



reason, and policy."  It used this "reasonable value" test to determine the fees owed to  

                                                                                                                                                 

Jacobus.10  

                                               



                                                           The court separately addressed each fee and cost that Jacobus had claimed  

                                                                                                                                                                                                                                                                                                                                                          



he was owed.  Starting with the Jadon litigation, the court detailed the calculations it  

                                                                                                                                                                                                                                                                                                                                                                                      



                              8                            683 So.2d 697, 704 (La. 1996).                                                                               



                              9                            721 A.2d 680, 691-92 (Md. App. 1998).                                                                                                                



                              10                          Id.  



                                                                                                                                                                                      -10-                                                                                                                                                                              7452
  


----------------------- Page 11-----------------------

                                                                                                                   

made in its July 2016 order. The court had determined Jacobus's fee by first calculating  



                                                                                                                               

what he would have been entitled to had he not been discharged, and then subtracting the  



                                                                                                                    

expenses the estate incurred to complete the work Jacobus had begun.  After explaining  



                                                                                                                        

its prior calculations, the court then considered the nature and gravity of the actions  



                                                                                                                        

leading to Jacobus's discharge and his subsequent behavior; the court found that Jacobus  



                                                                                                                              

"ha[d] seriously violated the duty of loyalty owed to his client."  It then concluded that  



                                                                                                                     

"Jacobus'[s]  breach  of  his  duties  to  his  client  [wa]s  so  egregious  that  a  complete  



                                                                       

forfeiture of the Jadon fee [wa]s warranted."  



                                                                                                                      

                     Thecourt next determined thatJacobus was owed no fee fromtheinsurance  



                                                                                                                                

case because his "contingency fee agreement did not entitle [him] to a fee based on  



                                                                                                                          

settlements that were never accepted."  The superior court also denied Jacobus's claims  



for additional fees and denied him reimbursement for the defense of ethics complaints  



                                                 

Kalenka had filed against him.  



                                                                                                                               

                     The court did award Jacobus $4,213.10 in hourly fees associated with the  



                                                                                                                    

administration of the estate as set forth in his fee agreement with the estate.  The court  



                                                                                                                     

found that the work had been performed before Jacobus's dismissal and had benefitted  



                                                                                                                              

the estate.  The superior court forwarded a copy of its written decision to the Alaska Bar  



                                                                                                                     

Association, noting that it "chronicle[d] actions by . . . Jacobus that may constitute  



                                                                                                                              

violations of the Alaska Rules of Professional Conduct" and requesting that the Bar  



                                                                                                                                    

review the matter and "determine on the merits whether any discipline is warranted."  



                                                                                                                                

                    In  December  2017  the  estate  filed  a  motion  to  disburse  the  funds  in  



                                                                                                                                

satisfaction  of  Jacobus's  creditor  claim for  $4,213.10,  as  the  court  had  ordered  in  



                                                                                                                              

 September. Jacobus filed a response requesting the court enter the final judgment so that  



                                                                                                                            

he could appeal.   In January 2018 the court denied Jacobus's request to enter final  



                                                                                                                         

judgment because "[d]isbursement of funds is a purely administrative matter."  



                                                               -11-                                                        7452
  


----------------------- Page 12-----------------------

                           Jacobus appeals the superior court's orders prohibiting him from revealing                                                      



confidential information to Teall; its findings that he violated his duties to his client; and                                                                        



the order forfeiting the majority of his fees.                                



III.	        STANDARD OF REVIEW                    



                                                                                                                                        11  

                           We applyour independent judgment to questions of law.                                                                             

                                                                                                                                            Factual findings  



                                                                                                                                                                

are reviewed for clear error and will not be set aside unless "review of the entire record  



                                                                                                                                                  12  

                                                                                                                                                                

leaves us with a definite and firmconviction that a mistake has been made."                                                                            We review  



                                                                                                                                                            

a "court's determination of the reasonableness of attorney's fees . . . in probate matters"  



                                              13  

                          

for abuse of discretion. 



IV.	         DISCUSSION  



                                                                                                                                                      

             A.	           The Superior Court's Order Prohibiting Jacobus From Discussing  

                                                                                                                                                              

                           Confidential Matters Did Not Require Jacobus To Violate His Ethical  

                           Duties.  



                                                                                                                                                                    

                           Jacobus argues that the superior court's August 2015 order that he "not  



                                                                                                                                                                         

disclose any confidential information" or "communicate with [Teall] about the Offer of  



                                                                                                                                                                

Judgment without permission fromhis client" was improper. He claims this order forced  



                                                                                                                                                     

him to violate Alaska Rule of Professional Conduct 1.15(d), which states:  



                                                                                                                                              

                          Upon receiving funds or other property in which a client or  

                                                                                                                                      

                           third person has an interest, a lawyer shall promptly notify  

                                                                                                                                              

                           the client or third person.   Except as stated in this rule or  

                                                                                                                               

                           otherwise permitted by law or by agreement with the client,  



             11           Alaska  Pub.  Def.  Agency  v.  Superior   Court, 450  P.3d  246,  251   (Alaska  



2019).  



             12           Adkins  v.  Collens,  444  P.3d   187,  203  n.53  (Alaska  2019).  



             13           In  re  Estate  of  Johnson,  119  P.3d  425,  430  (Alaska  2005);  see  also  Martin  



v.  Dieringer,   108  P.3d  234,  240  (Alaska  2005)  (vacating  and  remanding  award  of  fees  

to  attorney  and  personal  representative  fees f  or  consideration  of  breaches o                                                                 f  fiduciary  

duties  and  acts  of  bad  faith).  



                                                                                  -12-	                                                                           7452
  


----------------------- Page 13-----------------------

                                                                                                      

                    a lawyer shall promptly deliver to the client or third person  

                                                                                      

                    any funds or other property that the client or third person is  

                                                                                                         

                    entitled to receive and, upon request by the client or third  

                                                                                                            

                    person, shall promptly render a full accounting regarding the  

                                                   

                    funds or property.  



                                  

                    Jacobus also claims that the court's December 2015 order prevented him  



                                                                                                                     

from discussing matters with potential witnesses or third parties and that this prejudiced  



                                                                                                                         

his defense against Kalenka's allegations during the August 2017 evidentiary hearing  



                                                                                       

regarding funds that Jacobus had distributed to himself.  



                                                                                                                       

                    ButJacobus misinterprets bothRule1.15(d) and thecourt'sorderregarding  



                                                                                                                             

communication with Teall.  Rule 1.15(d) directs an attorney to promptly notify a client  



                                                                                                                                 

or third party upon receipt of funds or property in which the client or third party has an  



                                                                                                                                

interest.  The order prohibiting Jacobus from speaking with Teall only proscribed the  



                                                                                                                              

"disclos[ure of] any confidential information."  Jacobus could thus have complied with  



                                                                                                                                  

both the order and Rule 1.15(d)'s directive simply by notifying Teall of the existence of  



                            

settlement funds.  



                                                                                                                              

                    And contrary to Jacobus's arguments, theDecember 2015 order made clear  



                                                                                                                         

he was permitted to communicate with Teall or others. This order reiterated that Jacobus  



                                                                                                                           

was ordered in August to refrain only from disclosing confidential information unless  



                                                                                                           

authorized by Kalenka; it did not prohibit Jacobus from revealing non-confidential  



                                                                                                                         

information. Noting that the Jadon file was not confidential, the court stated that nothing  



                                                                                                                                  

in  its  August  order  prevented  Jacobus  from  sharing  information  with  Teall  that  a  



                                

settlement had been reached.  



                                                                                                                                  

                    As the superior court made clear, its order did not require any violation of  



                                                                                                                       

Jacobus's professional or ethical duties.   The superior court did not err by ordering  



                                                                                                        

Jacobus not to disclose confidential information without Kalenka's permission.  



                                                               -13-                                                         7452
  


----------------------- Page 14-----------------------

                                         B.	                                       The Superior Court Did Not Err By Finding Jacobus Violated His                                                                                                                                                                                                                                                                                                                                                                            

                                                                                  Duty Of Loyalty.                                                                                                   



                                                                                   The superior court found that Jacobus "continually violated" the duty of                                                                                                                                                                                                                                                                                                                                                                            



loyalty to his client, Kalenka.                                                                                                                                                                Jacobus filed pleadings that were directly adverse to                                                                                                                                                                                                                                                                                   



Kalenka, ignored Kalenka's instructions, and urged the court to take actions that were                                                                                                                                                                                                                                                                                                                                                      



contrary to the instructions he had received from Kalenka.                                                                                                                                                                                                                                                                                                                 



                                                                                  Although he does not challenge the court's findings, Jacobus argues that                                                                                                                                                                                                                                                                                                                                                                   



the court erred                                                                                  by   concluding that his actions with                                                                                                                                                                                                     respect to                                                               the   settlement funds   



constituted a breach of his duty to Kalenka and that it justified forfeiture of his fee.                                                                                                                                                                                                                                                                                                                                                                                                                                  The  



 superior court found Jacobus set up a trust arrangement in violation of both Kalenka's                                                                                                                                                                                                                                                                                                                                                                                               



instructions and the court's order.                                                                                                                                                                                     He created a new trust account for the settlement                                                                                                                                                                                                           



funds, separate from his firm's trust account, which he entitled "Kalenka Settlement                                                                                                                                                                                                                                                                                                                                                                                             



Proceeds Trust" and appointed himself trustee, without posting a bond. The Declaration                                                                                                                                                                                                                                                                                                                                                                                        



of Trust stated that the trust was created because "it appears necessary to protect the                                                                                                                                                                                                                                                                                                                                                                                                                                          



interests of all people who are involved with . . . Kalenka."                                                                                                                                                                                                                                                                                                            Its purposes were to protect                                                                                                     



"the integrity of the legal system," Teall's share of the inheritance, and Jacobus's and                                                                                                                                                                                                                                                                                                                                                                                                                                      



Clayton's fees and costs from interference by Kalenka.                                                                                                                                                                                                                                                                                                  



                                                                                   The court found the creation of the trust was a violation of the duties he                                                                                                                                                                                                                                                                                                                                                                         



owed to Kalenka.                                                                                                Attorneys owe both a fiduciary duty and a duty of loyalty to their                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                               -14-	                                                                                                                                                                                                                                                     7452
  


----------------------- Page 15-----------------------

                                       14                                                                                                                                                                                                                                                                                                                               15  

clients,                                        and a lawyer's efforts must be for the benefit of the client.                                                                                                                                                                                                                                                                     Actions taken not                                                               



for the benefit of the client are a violation of the duty of loyalty, and thus a violation of                                                                                                                                                                                                                                                                                                                                                                           



a lawyer's ethical duties.                                                                                                             Here, the court found that Jacobus established a trust in order                                                                                                                                                                                                                                                 



to protect the fee he believed Kalenka owed him and to protect the other beneficiary of                                                                                                                                                                                                                                                                                                                                                                                 



the estate from Kalenka, putting his and Teall's interests before Kalenka's. Because the                                                                                                                                                                                                                                                                                                                                                                            



trust was created to benefit others and not his client, the court found that Jacobus violated                                                                                                                                                                                                                                                                                                                                            



the duties owed to Kalenka.                                                                                                                           Jacobus does not challenge the superior court's underlying                                                                                                                                                                                                         



factual   findings,   and   the   court   did   not   err   by   concluding   that   Jacobus   violated   his  



fiduciary duty and duty of loyalty by creating the trust.                                                                                                                                                                                                                    



                                                                        Jacobus does challenge the superior court's finding that he withdrew funds                                                                                                                                                                                                                                                                                                    



from this trust without authorization.                                                                                                                                                                              Jacobus argues that the fees he disbursed to                                                                                                                                                                                                       



himself were not in dispute.                                                                                                                                 He refers to the October 2015 letter from Clayton after                                                                                                                                                                                                                                      



Clayton replaced him as Kalenka's attorney.                                                                                                                                                                                                           Jacobus claims that Clayton's statement                                                                                                                                  



that Jacobus was "entitled only to a fee in the amount of $83,333.33" concedes that he                                                                                                                                                                                                                                                                                                                                                                                 



is owed $83,333.33 from the settlement funds. But                                                                                                                                                                                                                              Jacobus ignores Clayton's directions  



on the previous page that he was "not authorized to disburse any of the settlement funds                                                                                                                                                                                                                                                                                                                                                              



from trust until disputes relating to [his] claim for fees and costs [were] resolved," and                                                                                                                                                                                                                                                                                                                                                                      



that he was to "retain all settlement funds in [his] trust account."                                                                                                                                                                                                                                                                                           



                                     14                                 Strickland v. Washington                                                                                                                   , 466 U.S. 668, 692 (1984) (describing duty of                                                                                                                                                                                                      



loyalty as "the most basic of counsel's duties"); R                                                                                                                                                                                                                                    ESTATEMENT   (THIRD)   OF THE                                                                                                                                     LAW  

GOVERNING  LAWYERS  § 16 (AM. LAW  INST . 2000) cmt. b & c;                                                                                                                                                                                                                                                                                                          see   Alaska R. Prof.                                                             

                                                                                                                                                                                                                                                           

Conduct 1.7 cmt. [1] ("Loyalty and independent judgment are essential elements in the                                                                                                                                                                                                                                                                                                                                                                              

lawyer's relationship to a client."); Alaska R. Prof. Conduct Rule 1.15 cmt. [1] ("A                                                                                                                                                                                                                                                                                                                                                                          

lawyer   should   hold   property   of   others   with   the   care   required   of   a   professional  

fiduciary.").  



                                     15                                  RESTATEMENT  (THIRD) OF THE  LAW  GOVERNING  LAWYERS   § 16 cmt. c.                                                                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                -15-                                                                                                                                                                                                                      7452
  


----------------------- Page 16-----------------------

                    The court rejected Jacobus's argument, noting "Jacobus characterized this  

                                                                                                                               



sum as an 'undisputed' part of the fee to which he believed he was entitled.  The fee, of  

                                                                                                                                 



course, was disputed resulting in further motion practice."  The court then detailed the  

                                                                                                                               



continuing dispute over Jacobus's entitlement to fees, spanning over two years.  

                                                                                                                          



                    The superior court did not err by concluding that Jacobus violated his duty  

                                                                                                                             



to Kalenka when he disbursed funds to himself. Clayton's October 2015 letter explicitly  

                                                                                                                      



directed Jacobus to refrain from disbursing funds because of the ongoing dispute over  



the amount to which he was entitled.  Jacobus therefore violated his duty of loyalty by  

                                                                                                                                



paying himself $83,333.33.  By filing pleadings and requesting authorization to take  

                                                                                                                             



actions that were contrary to Kalenka's interests and instructions to him, Jacobus also  

                                                                                                                              



violated his duty of loyalty to his client.  Further, by creating a trust for the specific  

                                                                                                                        



purpose of protecting himself and third parties from his client after his client discharged  

                                                                                                                   



him, and by paying himself from the trust funds despite an ongoing dispute over fees,  

                                                                                                                             



Jacobus committed additional violations of his duty of loyalty to Kalenka. The superior  

                                                                                                                       



court did not err by concluding that Jacobus had committed "egregious" violations of his  

                                                                                                                                



ethical duties.  

                       



          C.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Ordering  

                                                                                                                    

                    Forfeiture Of Jacobus's Entire Fee From The Jadon Settlement.  

                                                                                                                              



                    Jacobus argues that the court erred by adopting the reasonable value test  

                                                                                                                              



used by the Louisiana Supreme Court and the Maryland Court of Appeals to determine  

                                                                                                                     



whether he was entitled to legal fees after being discharged as Kalenka's attorney.  He  

                                                                                                                               



argues that the superior court should have used either the rule adopted by the Missouri  

                                                                                                                      



Supreme Court or the rule adopted by the California Supreme Court.  In International  

                                                                                                                



Materials Corp. v. Sun Corp., Inc. the Missouri court held that complete forfeiture of  

                                                                                                                                



attorney's fees was "warranted only when a lawyer's clear and serious violation of a duty  

                                                                                                                             



to a client is found to have destroyed the client-lawyer relationship and thereby the  

                                                                                                                               



                                                              -16-	                                                        7452
  


----------------------- Page 17-----------------------

                                                                                                         16  

justification for the lawyer's claim to compensation."                                                        And the California court, in                         



Fracasse v. Brent                 , held that a discharged attorney is entitled to "the reasonable value of                                                        

                                                                                                               17   Finally, Jacobus contends  

the services he has rendered up to the time of discharge."                                                                                            



that even if it selected the appropriate test, the superior court misapplied it.  

                                                                                                                                                   



                          Kalenka responds that Jacobus failed  to articulate any reason why the  

                                                                                                                                                                



reasonable value test was inappropriate and that this court should conclude that he  

                                                                                                                                                                 



 forfeited this argument. Kalenka also argues that even under the alternative tests Jacobus  

                                                                                                                                                        



proposed, he would receive no fee.   Kalenka asserts that under the Missouri court's  

                                                                                                                                                         



International Materials Corp. rule, forfeiture still would have been warranted because  

                                                                                                                                                        



the superior court found that Jacobus's conduct was a serious breach of his duty of  

                                                                                                                                                                  



 loyalty.  He also claims that the California court's Fracasse decision is distinguishable  

                                                                                                                                          



because the "discharge for cause" at issue there did not involve breach of an attorney's  

                                                                                                                                                    



 ethical duty, as here, but merely a client's loss of faith in an attorney.  

                                                                                                                                       



                          1.           Any error in overlooking Alaska precedent was harmless.  

                                                                                                                                          



                          The superior court defined its task as determining "what fee an attorney is  

                                                                                                                                                                    



 entitled to when he or she is discharged for cause or without cause."  And it accurately  

                                                                                                                                                   



 observed that there was little Alaskan law on the topic. In Moses v. McGarvey we stated  

                                                                                                                                                            



 "the general rule . . . that once a conflict of interest or other ethical violation has been  

                                                                                                                                                              

 established, the attorney is prohibited from collecting fees for his or her services."18  We  

                                                                                                                                                                 



                                                                                                                                                                   19  

have applied that rule only one other time, 15 years later, in In re Estate of Brandon .  

                                                                                                                                                                        



             16           824 S.W.2d 890, 895 (Mo. 1992).                       



             17  

                                                                   

                          494 P.2d 9, 14 (Cal. 1972).  



             18  

                                                                                    

                          614 P.2d 1363, 1372 (Alaska 1980).  



             19  

                                                                                    

                          902 P.2d 1299, 1317 (Alaska 1995).  



                                                                                -17-                                                                         7452
  


----------------------- Page 18-----------------------

In each of those cases, the attorney had assumed representation of a client at time when                                                                                         



                                                                                                                                                                                         20  

the attorney already had a conflict of interest, and as a result was not entitled to any fee.                                                                                                  



                              Jacobus, however, provided Kalenka with conflict-free representation for  

                                                                                                                                                                                       



years.  The superior court therefore had to determine to what extent he was entitled to  



compensation for that representation.  Moses and Brandon provide no guidance about  

                                                                                                              



separating  compensation  for  the  period  before  the  conflict  arose  from  the  period  

                                                                                                                                                                              



afterward.  The court appropriately turned instead to other jurisdictions' consideration  

                                                                                                               



of the issue.  

               



                             The reasonable value test that the court adopted from the Louisiana court's  

                                                                                                                                                                              



 O'Rourke case and the Maryland court's Somuah case allowed it to calculate the fees to  

                                                                                                                                                                                         



which Jacobus was entitled while remaining consistent with the "general rule" we stated  

                                                                                                                                                                                 



in Moses .  Jacobus's conflict of interest was clear by the time he filed his "Confidential  

                                                                                                                                                                



 Status Report."  From that point on he was not entitled to any fee - either according to  

                                                                                                                                                                                         



Moses or under the reasonable value test.  

                                                                                  



                               Because Jacobus had a personal conflict of interest with his client at the  

                                                                                                                                                                                       



latest by the time he filed the Confidential Status Report with the court, he was entitled  

                                                                                                                                                                             



only to fees earned prior to that date.  Jacobus was therefore entitled to his apportioned  

                                                                                                                                                                   



fees, such as his work administering the estate, and would have been entitled to his non- 

                                                                                                                                                                                   



apportioned contingency fee had he not "wilful[ly] and deliberate[ly] breach[ed] his  

                                                                                                                                                                                       

contract of service."21  

                          



               20            Id .   (remanding   for   consideration   of   estate   attorneys'   potential   ethics  



violations in settlement agreement where acting as attorneys for estate and for personal                                                                                   

representativesmay have"adversely[affected]theinterestsoftheintendedbeneficiary").                                                                              



               21            RESTATEMENT  (SECOND) OF  AGENCY  §469(A                                                           M.L      AW INST.1958);                     see also   



Miller v. Paul                 , 615 P.2d 615, 620 n.10 (Alaska 1980).                                   



                                                                                          -18-                                                                                    7452
  


----------------------- Page 19-----------------------

                              2.	            Jacobus failed to explain why the superior court should have                                                                              

                                             employed a different test.                          



                              In his brief Jacobus argues that "[t]he trial court should have adopted the                                                                                   



                                                                                                                              22  

rule of"          International Materials Corp. v. Sun Corp., Inc                                                            ,                                                           

                                                                                                                                   and that it "also should have  



                                                                                                       23  

                                                                                                                                                                                          

adopted a rule similar to Fracasse v. Brent."                                                                 He summarizes each case's rule in a  



                                                                                                                                                                                       

sentence,  but  provides  no  legal  argument  or  reasoning  why  these  rules  are  more  



                                                                                                                                                                                         

appropriate or even how they differ meaningfully from the reasonable value test.  



                                                                                                                                                                    

                              We  can  discern  no  substantive  difference  between  the  International  



                                                                                                                                                                                        

Materials Corp.  and the reasonable value tests.  Both require forfeiture of fees for a  



                                                                                                                                                                                           

serious breach of the duty of loyalty. The superior court concluded Jacobus's breach was  



                                                                                                                                                                                 

"egregious,"  a  description  that  more  than  satisfies  International  Materials  Corp. 's  



                                                                                                                                                                   

requirement  of  a  "clear  and  serious  violation  .  .  .  destroy[ing]  the  client-lawyer  

                               24    Under either test it was not an abuse of discretion to forfeit Jacobus's  

relationship."                                                                                                                                                               

contingent fee in its entirety.25  

                                               



                              And  as  Kalenka  argues,  the  Fracasse  test  is  distinguishable  from  the  

                                                                                                                                                                                           



reasonable value test and inapplicable here. While the Fracasse court's quantum meruit  

                                                                                                                                                                                     



rule  is  generally  the  same  as  the  reasonable  value  test,  California  courts  do  not  

                                                                                                                                                                                           



distinguish  between  "for  cause"  and  "without  cause"  discharges  of  an  attorney  in  

                                                                                                                                                                                              



               22	            824 S.W.2d 890, 895 (Mo. 1992).                                



               23	            494 P.2d 9, 14-15 (Cal. 1972).                         



               24             See  824 S.W.2d at 895.                     



               25             See also            RESTATEMENT   (SECOND)   OF  AGENCY   § 469 ("[I]f such conduct                                                                



constitutes a wilful and deliberate breach of [an attorney's] contract of service, he is not                                                                                                

entitled    to    compensation    even    for    properly    performed    services    for   which    no  

compensation is apportioned [such as work done under a contingency arrangement]."                                                                              



                                                                                             -19-	                                                                                      7452
  


----------------------- Page 20-----------------------

                                                                            26  

 applying the test.                                                                 The  Fracasse  test therefore fails to address the effect of an attorney's                                                                                                                                                                                         



 "egregious" violation of duties to a client on the attorney's entitlement to compensation.                                                                                                                                                                                                                                                                                                           



 Because   Jacobus   makes   no   argument   and   we   see   no   reason   why   the   International  



Materials   Corp.   and   Fracasse   tests would be more appropriate or would lead to a                                                                                                                                                                                                                                                                                                      



 different outcome, we reject his claim that the superior court erred when it adopted the                                                                                                                                                                                                                                                                                            



reasonable value test.                                                        



                                                            3.	                           The   superior   court   did   not   err   in   its   application   of   the  

                                                                                          reasonable value test.                                                            



                                                            Jacobus's final argument is that the superior court incorrectly applied its                                                                                                                                                                                                                                                 



 chosen test. Jacobus takes issue not with the test, which he characterizes as allowing the                                                                                                                                                                                                                                                                                           



 entire fee to be forfeited "only for serious and intentional breaches of ethical duties to the                                                                                                                                                                                                                                                                                       



 client," but with the court's finding that such a breach of ethical duty occurred.                                                                                                                                                                                                                                                                                  



                                                            But we have already determined that the superior court did not err by                                                                                                                                                                                                                                                      



 concluding that Jacobus breached his duty of loyalty by working actively against his                                                                                                                                                                                                                                                                                                 



 client's   interests   and   by   disbursing   disputed   fees   to   himself   without   Kalenka's  



permission and that Jacobus's breach of his duties was "egregious."                                                                                                                                                                                                                                               Thus, even under                                       



 Jacobus's   characterization   of   the   reasonable   value   test,   as   described   in   O'Rourke,  



Somuah, or                                              International Materials Corp.                                                                                                            , his breaches of ethical duties were severe                                                                                                                         



 enough that the superior court was within its discretion to forfeit Jacobus's contingency                                                                                                                                                                                                                                                   



 fee.   



                                                            In its 17-page order the superior court carefully considered the evidence                                                                                                                                                                                                                      



presented about each of the alleged ethical violations and Jacobus's stated justifications,                                                                                                                                                                                                                                            



 separately analyzed the                                                                                work Jacobus performed for Kalenka in each stageofthedecade-                                                                                                                                                                                             



 long   litigation,   and   reviewed   evidence   documenting   the   costs   the   estate   incurred  



                              26                            494 P.2d at 13.  

                                                                                                                 



                                                                                                                                                                                         -20-	                                                                                                                                                                                7452  


----------------------- Page 21-----------------------

                                                                                                                                                    

responding to motions and pleadings from Jacobus after he was replaced. The court also  



                                                                                                                                                             

looked at the work that Jacobus had performed related to the administration of the estate.  



                                                                                                                                                       

The court concluded that the serious and intentional nature of Jacobus's actions in  



                                                                                                                                                          

violation of his ethical duties required forfeiture of his fee from the Jadon settlement.  



                                                                                                                                                        

                        Nothing in its order or in Jacobus's brief indicates that the court acted in  



                                                                                                                                                  

a manner that was arbitrary, capricious, manifestly unreasonable, or that was the result  



                                                                                                                       

of an improper motive.  And none of the court's factual findings regarding Jacobus's  



                                                                                                                                                      

breach of his duty of loyalty are clearly erroneous.  Because the evidence supports the  



                                                                                                                                                     

court's finding that his violation of the duties he owed his client was egregious, the  



                                                                                                                                                      

superior court did not abuse its discretion when it decided that Jacobus's contingent fee  



                   

should be forfeited.  



V.          CONCLUSION  



                        The superior court's decision is AFFIRMED.                

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