Surrogate Rita Mella
Objectant Keiko Aoki, decedent’s surviving spouse, moved to disqualify law firm Holland & Knight as co-trustees’ counsel. The motion was related to a July 2008 distribution to decedent’s children under a “48-Hour Order”—compelling the trustees to give Aoki’s attorneys 48 hours notice in the event they intended to sell any stock owned by the Benihana of Tokyo Trust. As no notice was given to Aoki’s attorneys before the 2008 distribution, she objected to it, claiming the distribution of stock to decedent’s children violated the 48-hour order. She alleged the firm would “necessarily” be witnesses adverse to their clients on the facts of the distribution, among other things. The court stated to the extent the motion was based on the mere possibility the trustees would claim advice of counsel in justifying the distribution, it must be denied until trustees interposed same as a viable defense to the objections of this accounting proceeding. Also, the current record did not support a finding any attorney employed by the firm would “likely” be called as a witness on any significant and disputed factual issue or such testimony would be adverse to petitioners’ interests. The motion to disqualify was denied, but the co-trustees were directed to file and serve a reply to the objections.