would the indirect receipt of fees from the witness. Tr. V, 15, 19. Also he felt that it was negligent for an attorney not to advise an executor to apply to the court for instruction prior to engaging an expert to testify. Tr. V, 16.
As to the fees paid to Emmanuel Liebman, Mr. Bell testified that this payment also was improper because prior court approval was not obtained. Tr. V, 21. While it would have been preferable to pay on a time basis, the fact that his fees were paid on a contingent basis is not alone sufficient for malpractice. Tr. V, 22.
As to the fees paid to Mr. Crabtree, Bell stated that it was not wrong to engage outside counsel, but that it was wrong to pay him without first securing the approval of the court. Tr. V, 24. The fees of Morris Liebman were indicated to have raised the same impropriety, lack of prior court approval. Tr. V, 26-28.
In view of the above, the court must first inquire whether the acts for which Keown was surcharged were the acts of an attorney. As to the hiring of Emmanuel Liebman, Morris Liebman, and David Crabtree, the court finds these were not attorney's acts. A trustee would normally know the limits of his own education and experience, and hire outside expert assistance without first consulting his attorney. The court is guided on this point by the case of Smith v. Travelers Indemnity Co., 343 F. Supp. 605, 610 (M.D.N.C.1972), which held a malpractice insurer not liable where the attorney's activity in question "requires no legal skill or training and indeed, is done every day by thousands of individuals who are without legal training . . . ."
On the other hand, when a tax appeal is being taken and an attorney is involved, it would be the attorney's responsibility to arrange for witnesses and explain that a witness cannot be paid on a contingent fee basis. Thus, Keown as attorney would at most be liable for the Rosenfeld surcharge.
The court notes that when an individual such as Keown is wearing two hats and acting both as trustee and as his own attorney, it is difficult for a court to separate these two roles, as necessitated by this insurance policy.
However, even assuming that all of Keown's actions in hiring the various professionals were taken upon the advice of Keown the attorney, and that determination of the extent of coverage rests on the second line of inquiry, the nature of the attorney's acts, the result in this case would not differ.
At the outset, the court should note that Keown, in his role as attorney, can only be held liable to Keown as trustee, and thus collect on the Transamerica policy, if Keown the attorney was negligent in rendering his opinions. Intervenors have provided no persuasive legal support for their theory of trust accountability as a basis of the attorney's liability to the trustee.
In its decision of March 27, 1978, the court, is discussing one instance of professional malpractice by Mr. Keown, stated
Mr. Keown's professional negligence is accentuated by his failure even to submit the matter to the state court for its instructions. 451 F. Supp. at 402.