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Home My WebLink About08-04-08 (2)r-.~ C> ~ 0 .-;a- ~„ -;~ _~ IN THE COURT OF COMMON PLEAS ` ~ r n CUMBERLAND COUNTY, PENNSYLVANIA - "' ..~-- :;,~,,~` ORPHANS' COURT : ~ ~ ,--~ ;--; .~,, , ~- ,,--+ •• IN RE: ROBERT G. TRAVER ~' and O.C. No. 2008-00564 LOIS J. TRAVER . MOTION OF HCR MANORCARE TO DISQUALIFY THE LAW OFFICES OF GATES, HALBRUNER & HATCH, P.C., AND LOWELL GATES, ES UIRE, INDIVIDUALLY, FROM REPRESENTATION OF ANNA MESSIMER AND HER WARDS, LOIS T. TRAVER AND ROBERT G. TRAVER AND NOW COMES, HCR ManorCare -Camp Hill ("ManorCare"), by and through its counsel, SCHUT1Ex BOGAR LLC, and files this Motion to Disqualify the Law Offices of GATES, HALBRUNER & HATCH, P.C., and Lowell Gates, Esquire, Individually, From Representation of Anna Messimer and her Wards, Lois J. Traver and Robert G. Traver: 1. On or about May 28, 2008, ManorCare filed a Petition to Remove Agent and Appoint Trustee to Facilitate the Sale of Real Property, requesting that Anna Messimer be removed as Agent of her parents, Lois J. Traver and Robert G. Traver, for breaching her fiduciary duties to her parents, allowing her brother to act as Agent of her father, Robert G. Traver without a valid power-of-attorney, and causing harm to her parents by failing to qualify them for Medical Assistance benefits. ORIG;NAL 2. On or about June 19, 2008, Lowell Gates, Esquire, of GATES, HALBRUNER & HATCH, P.C. entered his appearance before this Honorable Court on behalf of Robert and Lois Traver. 3. On or about June 19, 2008, an Answer and New Matter to ManorCare's Petition for Removal of Agents and Appointment of a Trustee to Facilitate the Sale of Real Property was filed by Sarah McCarron, Esquire, of GATES, HALBRUNER & HATCH, P'.C., on behalf of Robert Traver and Lois Traver. 4. On or about July 9, 2008, a Motion to Reconsider Order Making Rule Absolute was filed by Sarah McCarron, Esquire, of GATES, HALBRUNER & HATCH, P.C., on behalf of "Respondent, Robert G. Traver and Lois J. Traver, by and through their Attorney-in-Fact, Anna Messimer." 5. Paragraph 3 of the Motion to Reconsider Order Making Rule Absolute, references GATES, HALBRUNER & HATCH, P.C. as counsel for Anna Messimer. This was the first instance in which GATES, HALBRUNER & HATC~t, P.C. claimed to represent Anna 1Vlessimer individually, and not in her capacity as agent of Robert and Lois Traver. 6. On or about July 17, 2008, counsel for Ronald Traver, Robert and Lois Traver's son, filed a Petition for Removal of Agents under the Power of Attorney of ][~obert G. Traver. 2 7. Paragraph 10 of that Petition states as follows: On or about January 25, 2008, Messimer, acting as agent for Mr. Traver, transferred the Farm property that had been owned by Mr. Traver and Mrs. Traver, individually as equal tenants in common, to Mrs. Traver, individually. 8. Paragraph 11 states as follows: Upon information and belief, Mr. Traver is under the impression that he still owns one-half of the Farm, and that it was not his wish for it to ever be sold. 9. Pennsylvania Rule of Professional Conduct 1.7 prohibits a lawyer from representing a client "if the representation involves a concurrent conflict of interest." I'a.R.P.C.1.7 (a). 10. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially Limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 1'd. 11. "Notwithstanding the existence of a concurrent conflict of interest ... a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; 3 (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent." P'a.R.P.C. 1.7 (b), (emphasis added). 12. Given the allegations contained in ManorCare's Petition and Ronald T'raver's Petition, and the nature of the proceedings challenging Anna Messimer's qualification to continue as agent of Robert and Lois Traver, the interests of Anna Messimer and Robert and Lois Traver are directly adverse. Additionally, there is significant risk that the representation of Anna Messimer will be materially limited by t:he GATES, HALBRUNER & HATCH, P.C.'s responsibilities to Robert and Lois Traver. 13. Upon information and belief, given the capacities of Robert and Lois Traver that necessitated their execution of Powers-of-Attorney, Robert and Lois Traver acre unable to give informed consent to concurrent representation. 14. Given the nature of the proceedings, Anna Messimer cannot grant informed consent to concurrent representation on behalf of Robert and Lois Traver. 4 WHEREFORE, Petitioner respectfully requests this Honorable Court remove the Law Offices of GATES, HALBRUNER & HATCH, P.C., and Lowell Gates, Esquire, individually, as counsel for Robert and Lois Traver and appoint independent counsel, or guardian ad litem, to represent Robert and Lois Traver. Furthermore, Petitioner respectfully requests this Honorable Court disqualify the Law Offices of GATES, HALBRUNER & HATCH, P.C., and Lowell Gates, Esquire, individually, from representation of Anna Messimer. Respectfully submitted, Dated: d/~/~ ~ SCHUTJER BOGAR LLC i By: ~/ki Kirk Sohonage Attorney I.D. No. 77851 (717) 909-8160 Brandon S. Williams Attorney I.D. No. 200713 (717) 909-5922 417 Walnut Street, 4~Floor Harrisburg, PA 17101 Fax No.: (717) 909-5925 Attorneys for Petitioner ManorCare 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Motion to Disquali fib the Laze Offices of Gates, Halbruner £~ Hatch, P.C., and Loz~~ell Gates, Esquire, Individually, From Representation of Anna Messimer and her Wards, Lois J. Traver and Robert G. Traver was served via first-class United States mail, postage prepaid upon the following: Lowell R. Gates, Esquire GATES, HALBRUNER & HATCH, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Edward P. Seeber, Esquire JAMES, SMITH, DIETTERICK Rz CONNELLY, LLP 555 Gettysburg Pike, Suite C-400 Mechanicsburg, PA 17055 g c d$ Date: By: ~~ William Keslar, Paralegal