How should I address unauthorized revisions and unclear communication from opposing counsel during the drafting of a consent order in a probate case?
Detailed Answer
When you draft a consent order in a probate matter, accuracy and clarity are critical. Unauthorized revisions by opposing counsel or vague emails can expose your client to unwanted terms or delays. Here is how to handle these issues under North Carolina law.
1. Insist on Track Changes and Version Control. Require opposing counsel to send proposed orders with tracked revisions, date stamps, and clear version numbers. Use a consistent file‐naming system (for example, ConsentOrder_v1_Proposed_20240601.docx). This process helps you compare drafts easily and prevents misunderstandings about which text the parties have approved.
2. Object in Writing to Unauthorized Edits. If you discover changes you never approved, send a written response that:
- Identifies each unauthorized edit by page and paragraph.
- Explains why the change is unacceptable or deviates from your client’s instructions.
- Offers alternative language that reflects the prior agreement.
- Sets a clear deadline for counsel to provide a corrected draft.
Under Rule 11 of the North Carolina Rules of Civil Procedure, every pleading or order you submit must bear your signature certifying its accuracy. For more on procedural standards, see N.C. Gen. Stat. Chapter 1A.
3. Invoke Professional Responsibilities. Remind opposing counsel of their duty of candor to the court and fairness toward other parties under the North Carolina Rules of Professional Conduct. While not a statute, these ethical rules serve as a meaningful reminder that vague or deceptive practices violate professional obligations.
4. Propose a Focused Conference. If email exchanges stall, suggest a brief teleconference or meeting. Provide an agenda listing each disputed clause. After the call, circulate written minutes confirming any agreements. This step often resolves issues faster than back‐and‐forth emails.
5. Involve the Court When Necessary. If opposing counsel refuses to correct unauthorized edits or maintains confusing communications, file a notice or motion with the clerk. Attach your redline comparison and email trail as exhibits. The court has inherent authority to enforce its orders and may consider sanctions under Rule 37 of the North Carolina Rules of Civil Procedure (Rule 37).
6. Protect Your Client’s Interests. Never file or sign a consent order containing language your client did not approve. A fully executed consent order binds your client as if the judge had entered the terms in open court. Always confirm the final draft in writing before submission.
Key Steps to Address Unauthorized Revisions and Unclear Communication
- Maintain strict version control and require track changes.
- Identify and object to unauthorized edits in writing.
- Reference procedural requirements like Rule 11 of the N.C. Rules of Civil Procedure.
- Remind opposing counsel of ethical duties under the Rules of Professional Conduct.
- Schedule a focused conference to resolve disputes efficiently.
- File a notice or motion with the court if negotiations break down.
- Document all communications to safeguard your client’s interests.
Conclusion and Next Steps
If you encounter unauthorized revisions or unclear communication when drafting a consent order in your probate case, follow the steps above to protect your client and keep the process moving. Pierce Law Group’s attorneys have decades of probate administration experience and practical courtroom insight. To discuss your situation, email intake@piercelaw.com or call us at (919) 341-7055.
