This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-2136

 

In Re Matter of

Thomas J. Mellgren Trust Agreement

dated May 3, 1974;

 

In Re the Matter of

the Mellgren Family Trust Agreement;

 

Thomas J. Mellgren, et al.,

Appellants,

 

vs.

 

Gerald T. Mellgren, et al.,

Respondents,

 

William F. Mellgren, Trustee of the

Mellgren Family Trust,

Respondent,

 

Midway National Bank, Trustee of the

Thomas J. Mellgren Trust,

Respondent,

 

Thomas J. Mellgren Trust,

Respondent.

 

Filed April 24, 2001

Affirmed

Harten, Judge

 

Washington County District Court

File No. C0-00-404

 

James G. Roban, Attorney at Law, 261 Ruth Street, St. Paul, MN 55119 (for appellants Thomas J. Mellgren, et al.)

 

Robert A. McLeod, McLeod & Troy, P.A., 2550 University Avenue West, Suite 459S, St. Paul, MN 55114 (for respondent Gerald T. Mellgren, Former Trustee of Thomas J. Mellgren Trust)

 

Michael D. O’Neill, Brian M. Meloy, O’Neill, Grills & O’Neill, P.L.L.P., W1750 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Gerald T. Mellgren, et al.)

 

Joel T. LeVahn, Hance & LeVahn, Ltd., 941 Hillwind Road NE, Suite 301, Fridley, MN 55432 (for respondent William F. Mellgren, Trustee of Mellgren Family Trust)

 

Rodney J. Mason, Jack D. Nelson, Chandler & Mason, Ltd., 1607 Pioneer Building, 336 North Robert Street, St. Paul, MN 55101 (for respondent Midway National Bank-Trustee)

 

James R. Brinegar, 1675 South Greeley Street, Suite 203, Stillwater, MN 55082 (for respondent guardian ad litem)

 

            Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Poritsky, Judge.^*

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellants challenge the district court’s order that their attorney be removed from representing them.  Because we see no abuse of discretion in the order, we affirm.

FACTS

 

            Thomas Mellgren, now 45, has been severely incapacitated both physically and mentally since a motorcycle accident in 1972 when he was 16.  The proceeds from his personal injury claim were used to establish a trust to take care of his financial needs for the rest of his life.  His father, James Mellgren, was the trustee.  From 1979 to 1996, Thomas Mellgren was cared for jointly by his parents and by his brother, respondent Gerald Mellgren, and Gerald’s wife, respondent Joan Mellgren.  

            When James Mellgren died in 1996, Gerald became trustee.  Gerald and Joan briefly became Thomas’s sole caregivers until he moved to a group home where appellant Joanne Mellgren, then Joanne Hinshaw, was employed as a caregiver for residents. 

Joanne and Thomas developed a relationship.  After a year in the group home, he moved out of the group home and into Joanne’s apartment; they were married, without the knowledge of any of Thomas’s relatives.  Attorney Roban’s daughter was a marriage witness.  Joanne quit her job so she could care for Thomas.  Her expenses thereafter were paid by the trust.

            After the marriage, while represented by Roban, Thomas brought a total of four legal actions against Gerald and Joan, and, after Gerald resigned as trustee, against respondent Midway National Bank as successor trustee, alleging that the trust had been mismanaged, that Thomas had been denied an accounting, and that his real property had been converted.  In two of these actions, Joanne was joined as a plaintiff and also was represented by Roban. 

Roban brought an action in another court to enable Thomas Mellgren to adopt two of Joanne’s three adult children.  Roban claims he has provided about $206,000 of contingent fee legal services to Thomas Mellgren.  The trust is now worth about $400,000.

The district court appointed an individual who is both an attorney and a psychologist as guardian ad litem for Thomas Mellgren.  The guardian ad litem requested a psychological evaluation to determine Thomas’s capacity.  The evaluating psychologist reported that Thomas is “vulnerable to both financial and personal exploitation” and that his judgment as to his own physical health and financial status is severely impaired.  The psychologist recommended that decisions on these matters be made by someone dedicated to upholding Thomas Mellgren’s best interests. 

After reviewing the psychologist’s report, the guardian ad litem requested that Roban be removed as Thomas Mellgren’s attorney and that another attorney be appointed to represent Thomas separately from Joanne.  The guardian ad litem further suggested that Thomas’s attorney work with him to determine whether the four lawsuits are in Thomas’s best interests, to seek the appointment of a conservator, and to evaluate whether the adoption of Joanne’s children was in Thomas’s best interests.

On the guardian ad litem’s recommendation, and with respondents’ support, the district court removed attorney Roban.  Appellants sought a writ of prohibition in this court, but it was denied.  They then brought this appeal. ^[1]

D E C I S I O N

 

A district court has discretion in granting or denying a petition to remove an attorney.  See Jenson v. Touche Ross & Co., 335 N.W.2d 720, 732-33 (Minn. 1983) (“We conclude that the trial court did not exceed the bounds of its proper discretion in denying * * * plaintiffs’ motion to disqualify defendant’s counsel.”).

Minn. R. Prof. Conduct 1.7 provides that a lawyer may not represent clients whose interests are adverse unless each client consents to the representation after consultation.  The district court found that appellants’ interests are adverse and that Thomas Mellgren lacks the capacity to consent to the representation.  Appellants challenge both findings.

We see three areas in which appellants’ interests are adverse.  First, the Thomas J. Mellgren trust was created for the sole purpose of supporting Thomas Mellgren.^[2]  It is in Thomas’s interest to have the trust administered by a competent, neutral trustee, committed to Thomas’s interest and not itself seeking trust disbursements.  Joanne Mellgren seeks to have Midway Bank removed and herself appointed as trustee.  However, since she quit her job when Thomas moved in with her, Joanne has sought trust disbursements for her own expenses.  We agree with the district court that having her as trustee is not in Thomas’s best interests.^[3]

Second, the risk of the four lawsuits filed by attorney Roban is borne by Thomas, since any counterclaims (one of the lawsuits has generated a substantial counterclaim) and expenses will have to be paid from the trust corpus.  But, if the lawsuits do prove meritorious, the benefit will accrue primarily to Joanne; Thomas’s life expectancy in 1996 was three to five years.  Thus, maintaining the lawsuits appears to benefit Joanne rather than Thomas.^[4]

Third, it is at least arguable that the adoption of Joanne’s adult children was in Joanne’s interest rather than Thomas’s interest.  Thomas testified in a deposition that he did not know who Joanne’s son Benjamin was; later this was amended by Thomas and Joanne so that Thomas identified Benjamin as his adopted child.  Attorney Roban did the legal work for the adoption, which was obviously in Joanne’s and her adult children’s interest, since all of them are likely to survive Thomas.

Accordingly, appellants have adverse interests, and an attorney may not represent both of them unless each consents to the representation after consultation.  See Minn. R. Prof. Conduct 1.7.  The district court found that Thomas “appears to lack capacity to waive the conflict of interest that exists between himself, and his wife [Joanne], Mr. Roban’s other client.”  The evidence shows that Thomas Mellgren lacks the capacity both to understand conflict of interest and to consent to an attorney’s representation of both himself and Joanne.  Appellants argue that the guardian ad litem should waive the conflict of interest for Thomas, but given the guardian ad litem’s recommendation that Roban be removed, this argument is unpersuasive.

Finally, appellants argue that, if Roban withdraws from the representation of Joanne, he can continue to represent Thomas because Joanne, as the former client, can consent to the representation.  But Minn. R. Prof. Conduct 1.9 (b) provides that a lawyer who has formerly represented a client may not use information relating to the representation to the disadvantage of the former client.  Attorney Roban claims he would not do this, but even the possibility of it being done is sufficient to disqualify an attorney.  See National Texture Corp. v. Hymes, 282 N.W.2d 890, 894 (Minn. 1979) (“attorney should * * * refrain from representing a party in an action against [a] former client where there is an appearance of a conflict * * * or a possible violation of confidence, even if such may not be true in fact”). 

Appellants would distinguish National Texture by arguing that the litigation in which Roban would be representing Thomas Mellgren is not against Joanne.  But the conflict of interest lies not in the outcome of the lawsuits; it lies rather in whether they should be pursued at all.  It may well be in Joanne’s interests, and also in attorney Roban’s interests, to pursue the lawsuits, but in Thomas’s interests to abandon them. 

Because appellants have adverse interests and appellant Thomas Mellgren lacks the capacity to consent to joint representation of himself and Joanne Mellgren, the district court did not abuse its discretion in removing Roban as appellants’ attorney.

Affirmed.