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HomeMy WebLinkAbout08-22-08IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. IVhUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHAN'S COURT DIVISION N0.21-86-398 ~a ~ --~ ` _ --, Za. MOTION TO DISQUALIFY MORGAN, LEWIS & BOCKIUS~~~ R; THE MARTSON LAW OFFICE FROM CONTINUING LEGAL: ; ~ G 1 ~1 REPRESENTATION OF THE ESTATE AND THE TRUSTS' _. ~~~ _ r~ ~- ' AND NOW comes Robert M. Mumma, II, pro se, and files the instant Further Motion for Recusal of Judge Oler, and in support thereof avers as follows: 1. The undersigned Movant is Robert M. Mumma, II, an adult individual, is pro se in this matter inasmuch as no attorney has currently entered an appearance on his behalf. 2. The Movant is a beneficiary of the above-captioned Estate and the Trusts created under the Will of the Decedent.' 1 On December 21, 2004, the Movant filed a Motion to Compel Discovery with its Paragraph #4 averring that he is a beneficiary of the Estate and the Trusts; on December 29, 2004, the Executrices and/or Trustees filed a Response with its Paragraph #4 averring: "Admitted." See, Rizzo v. Haines, 555 A.2d 58 (Pa. 1989)(judicial admissions in pleadings aze conclusive in the case in which they are filed; such pleadings cannot later be contradicted by the party who has made them and the trial court abuses its discretion if it ignores the admission); DeMuth v. Miller, 652 A.2d 891 (Pa. Super. 1995xa judicial admission has the effect of a confessory pleading in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the pazty by whom the judicial admission was made is not allowed to disprove it). 3. The Movant is a trustee of contingent beneficiaries of the above-captioned Estate and Trusts. 4. In accordance with the operative effect of Pennsylvania Orphans' Court Rule '1.1(f) and the prior court orders entered in this matter, including, but not limited to, this Court's Order dated February 23, 2000, the Movant has standing before the Orphans' Court in this case. 5. Two other beneficiaries of the Estate and Trusts are Linda Mumma and Barbara :Mann Mumma, same being parties to this action and also having standing before the Orphans' Court. 6. The Executrices/Trustees of the aforesaid Estate and Trusts are Lisa Mumma Morgan and Barbara McK. Mumma. 7. In 1986, the Executrices/Trustees secured Morgan, Lewis & Bockius as legal counsel and same has continued said legal representation through to the present. 8. Morgan, Lewis & Bockius is an international law firm with many office locations, including Harrisburg, Pennsylvania. 9. As early as 1987, the Executrices/Trustees have also been represented by The Martson Law Office of Carlisle, Pennsylvania and same has continued said legal representation through to the present. 10. The Executrices/Trustees have engaged two area law firms as legal counsel with n.o legitimate explanation as to whether a single law firm could suffice for legal representation. 11. The Executrices/Trustees are utilizing estate funds to make payment of legal fees to both of the aforesaid law firms. 12. The expenditure of estate funds for payment of legal fees to two area law firms is needlessly exhausting estate resources, unjustly depleting and prejudicing the interests of the aforesaid beneficiaries in the Estate and Trusts, and is otherwise wasteful, duplicative, and ~.innecessary. 13. The aforesaid beneficiaries (the undersigned, Barbara Mann Mumma, and Linda :Mumma) were never consulted as to the reasons requiring legal representation of the Estate and 'Trusts by two area law firms, nor have they been given any explanation as to the necessity of continuing legal representation by two area law firms. 14. The undersigned was an individual client of Morgan, Lewis & Bockius for several months in 1986 and in 1987. 15. The undersigned never sought legal advice and counsel from The Martson Law Office. 16. In 1986 and 1987, Morgan, Lewis &Bockius provided legal advice to the aforesaid beneficiaries including, but not limited to, legal counsel regarding the terms of the will and the trusts, tax advantages, the effect of disclaimers, shareholders meetings and rights, corporate dissolutions, quarry and mineral reserve issues, the creation of tenancies in common, powers of attorney, and similaz legal advice and counsel on related estates and trusts matters subsequent to the Decedent's date of death. 17. In addition to the foregoing legal advice and counsel, the undersigned also received separate and individual legal counsel from Morgan, Lewis &Bockius in 1986 and 1987 regarding the Estate and the Trusts, his own personal estate planning, marital agreements, and tax advice. 18. While a client of Morgan, Lewis &Bockius, the undersigned delivered his :personal financial statement, reviewed drafts of documents, signed documents, engaged in extensive discussions and meetings, and otherwise actively participated with said law firm as a client. 19. While a client of Morgan, Lewis &Bockius, the undersigned was given legal advice and counsel as to the propriety of filing a disclaimer and the effect thereof on his present and future interests and the present and future interests of his minor children. 4 20. While a client of Morgan, Lewis &Bockius, the undersigned was given legal advice and counsel as to the tax consequences attendant to the filing of a disclaimer and related IRS requirements. 21. The undersigned made payment of legal fees to Morgan, Lewis &Bockius in conjunction their attorney-client relationship, which the latter accepted. 22. Upon receiving legal advice and counsel from Morgan, Lewis &Bockius regarding the filing of a disclaimer, the undersigned executed a single copy of same. 23. The undersigned returned a single copy of the disclaimer to Morgan, Lewis & ]Bockius with express handwritten instructions that same was to be delivered to an Executrix such that he would retain in his possession all of the other copies forwarded to him for execution. 24. Contrary to the undersigned's instructions, Morgan, Lewis &Bockius caused a copy of the disclaimer to be filed with the Orphans' Court in January 1987. 25. The disclaimer was filed with the Orphans' Court by William Manson, Esquire of 'The Manson Law Offices at the sole direction of Morgan, Lewis &Bockius. 26. T'he undersigned did not instruct or otherwise authorize Mr. Martson to file his disclaimer with the Orphans' Court. 5 27. At the time the disclaimer was filed by Mr. Martson, there was no attorney-client relationship between the undersigned and The Martson Law Office, nor did same arise thereafter. 28. Morgan, Lewis & Bockius subsequently advised the undersigned that it could no longer represent him as its representation of both him and the Executrices/Trustees would constitute an impermissible conflict of interest. 29. Subsequently thereto during the long history of this matter, Morgan, Lewis & Bockius has continually and repeatedly taken various, diverse, and calculated actions against the undersigned designed to deplete and prejudice his interests in the Estate and the Trusts, and otherwise has continually and repeatedly asserted legal positions and arguments in opposition to 'the undersigned and his past, present, and future interests. 30. Morgan, Lewis & Bockius has repeatedly sued the undersigned, its former client, in matters regarding the very subject of which were the topics of prior legal advice and counsel which it had rendered during their attorney-client relationship. 31. As legal counsel to the Executrices/Trustees, Morgan, Lewis & Bockius has continually and repeatedly utilized the filing of the disclaimer against the undersigned in this case, has constructed various and diverse arguments regarding same and the revocation thereof in opposition to the undersigned at virtually every stage of these proceedings, and repeatedly raises 1:he alleged inefficacy of the revocation of the disclaimer in its pleadings and court filings. 6 32. As a result of its conduct in these matters, Morgan, Lewis & Bockius has violated the Rules of Professional Conduct. 33. As a result of its conduct in these matters, Morgan, Lewis & Bockius has violated ethical and legal obligations which it owed and continues to owe to the undersigned in both of his capacities as a former client and as a present and future beneficiary of the Estate and the 'Trusts. 34. Since the early 1990s and thereafter to the most recent filings, most of the estate litigation filings on behalf of the ExecutriceslTrustees have been prepared and served by The ]Vlartson Law Office. 35. It is believed and therefore averred that Morgan, Lewis & Bockius has utlized the ro-counsel of The Martson Law Offices in these matters to ameliorate the both the impropriety and the appearance of impropriety arising from the aforesaid ethical and legal violations. 36. During its history as co-counsel with Morgan, Lewis & Bockius in this matter, The Martson Law Office has likewise continually and repeatedly taken various, diverse, and calculated actions against the undersigned designed to deplete and prejudice his interests in the Estate and the Trusts, and otherwise has continually and repeatedly asserted legal positions and arguments in opposition to the undersigned and his past, present, and future interests. 7 37. Most recently, on August 13, 2008, The Martson Law Office filed a response to the undersigned's motion to vacate the appointment of Taylor Andrews, Esquire as the Auditor which denied the majority of the averments in said motion to vacate and which sought to have said motion denied by the Orphans' Court. 3 8. At the hearing on August 18, 2008 regarding said motion to vacate the appointment of Taylor Andrews, Esquire as the Auditor, both Morgan, Lewis & Bockius and The Martson Law Office contested the undersigned's efforts to remove the Auditor notwithstanding the delays in the Estate litigation attributable to the inaction of Mr. Andrews. 39. Following the testimony and the evidence presented at said August 18, 2008 hearing, which was in part consonant with the averments in the undersigned's motion to vacate, ~~udge Oler removed Taylor Andrews as the Auditor and indicated that another auditor would be appointed in seven days. 40. Morgan, Lewis & Bockius and The Martson Law Office, individually and jointly, have contested, resisted, and sought to frustrate virtually all actions and positions taken by the undersigned in this case notwithstanding the relative merits thereof. 41. As the legal representation of the Executrices/Trustees, Morgan, Lewis & Bockius quid The Martson Law Office have embarked on a deliberate course of action during the long history of the instant case which has been devised to deplete, fiustrate, and prejudice the interests of the aforesaid beneficiaries of the Estate and the Trusts, notwithstanding the l:xecutrices/Trustee's legal and fiduciary duties owed to and for the benefit of said beneficiaries. 8 42. As a result of the legal advice and counsel of Morgan, Lewis &Bockius and The Martson Law Office rendered to the Executrices/Trustees with respect to the 5% withdrawal rights under the Marital Trust, and the Executrices/Trustees subsequent actions taken with respect thereto, the interests of the aforesaid beneficiaries have been and continue to be depleted, frustrated, and prejudiced notwithstanding the Executrices/Trustee's legal and fiduciary duties. 43. As a result of the legal advice and counsel of Morgan, Lewis &Bockius and The Martson Law Office rendered to the Executrices/Trustees with respect to the acquisition of and disposition of various assets, interests, and property allegedly belonging to the Estate, and the Executrices/Trustees subsequent actions taken with respect thereto in spite of the contested :nature of any right to claim same as an Estate asset, the interests of the aforesaid beneficiaries have been and continue to be converted and prejudiced notwithstanding the :ExecutriceslTrustee's legal and fiduciary duties. 44. At the aforesaid hearing on August 18, 2008, Mr. Martson was subpoenaed as a witness and brought documents with him to the hearing regarding issues attendant to the filing of the disclaimer. 45. In lieu of testifying at a deposition, Mr. Mattson executed a sworn affadavit dated April 13, 2004 which stated that he filed the disclaimer at the Register of Wills at the direction of an attorney at Morgan, Lewis &Bockius (Arthur Klien, Esquire). 9 46. Another attorney at Morgan, Lewis & Bockius (Joseph O'Connor, Esquire) had been noticed for a deposition in this case earlier this year, but same was continued by Taylor .Andrews, Esquire, the former Auditor. 47. Individual attorneys at both Morgan, Lewis & Bockius and The Martson Law Office have been and will be material witnesses in this case who will be aligned against the iinterests of the undersigned and the other aforesaid beneficiaries. 48. Due to the legal, ethical, and fiduciary issues raised herein, both Morgan, Lewis ~~ Bockius and The Martson Law Office should be disqualified from continuing as legal counsel on behalf of the Executrices/Trustees in this case. 49. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(9), the Movant has not obtained the concurrence of any counsel to the other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the Movant would not receive cooperation from them with respect to such a motion. 50. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(2), the Honorable Wesley Oler has previously ruled on prior motions filed by the parties hereto. 10 WHEREFORE, the Movant respectfully requests that Your Honor issue an appropriate Order which GRANTS the instant Motion to Disqualify Morgan, Lewis & Bockius and The Manson Law Office From Continuing Legal Representation of the Estate and the Trusts, that said law firms be ordered to refrain from any communication with any replacement counsel subsequently retained by the Executrices/Trustees which would maintain or further perpetuate the prejudice and detriment to the interests of the aforesaid beneficiaries, and that said law fums be ordered to deliver in toto the complete records of the Estate, the Trusts, and the Decedent to such replacement counsel whether same be in the possession or in the control of said two law firms, or in the alternative, that Your Honor issue an appropriate Order which schedules a hearing on this matter. Respectfully submitted, Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 (717) 612-9720 pro se 11 CERTIFICATE OF SERVICE I, Robert M. Mumma, II hereby certify that a copy of the foregoing Motion to Disqualify Morgan, Lewis & Bockius and The Martson Law Office from Continuing Legal Representation o:Pthe Estate was served this date by U.S. Mail, first class, postage prepaid, addressed to: George B. Faller, Jr., Esquire No V. Otto, III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 1515 Market Street -Suite 705 Philadelphia, PA 19102 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Taylor Andrews, Esquire Court-Appointed Auditor 78 West Pomfret Street Carlisle, PA 17013 DATE: August 22, 2008 BY: ~-G obert M. Mumma, II Box 58 Bowmansdale, PA 17008 717-612-9720 PROSE