By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
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Phelps wrote back on July 7, 1988, asking MacNamara seven detailed questions related to the lawyer's unexpected suggestion. They began: "1.) Why would a co-personal representative be needed if I have two attorneys assisting me? 2.) Wouldn't another personal representative add to the cost of administration?" Phelps claims that MacNamara promised in mid-July to prepare a response to his questions.
And then, according to Phelps, MacNamara seemed to vanish. The loan he had promised to arrange with AmeriFirst never materialized. The response to Phelps's concerns was never prepared. Suddenly, Phelps says, he was unable to reach MacNamara by phone and was "consistently advised that MacNamara was `unavailable,' `out of the office,' `in a meeting,' `with a client,' `on a long-distance call,' and `will get back to you.'" On September 21, 1988, Phelps sent MacNamara a letter telling him he was fired, and requesting a bill for his services. Phelps says accountant Paul Salver, who at the time was busily trying to prepare the many tax forms required of the Count's estate, complained to both him and Rodez that he had had unusual difficulty reaching MacNamara after the attorney had agreed to help with the tax preparation. For months after discharging MacNamara, Phelps would write to the lawyer demanding that he return files pertaining to the Count's estate. The files never were returned, Phelps claims.
Phelps says he began to get a "gut feeling" that MacNamara and AmeriFirst's Jackson were close personal friends as well as professional colleagues. In early October of 1988, two weeks after he had fired MacNamara, that hunch seemed to be confirmed. MacNamara showed up uninvited with Jackson at a breakfast meeting Phelps had arranged between the banker, himself, his lawyer Miguel Rodez, and the estate accountant Paul Salver at the plush Grove Isle Club. According to Phelps and Rodez, the AmeriFirst banker did nothing to explain why MacNamara was there. (Richard Jackson did not return phone calls to his Miami office seeking comment for this article.) In his August 1990 complaint to the Florida Bar, Phelps said he was "perplexed and angered by MacNamara's presence, but since the meeting took some time to arrange, was at a private club..., and Phelps did not wish to create any problems, Phelps permitted MacNamara to stay."
The odd presence of MacNamara at the meeting became uncomfortably clear to Phelps three months later. In early January 1989, he and Rodez say they were driving to a meeting when they received a message to call MacNamara. When they did, MacNamara informed them that he would be representing AmeriFirst Florida Trust Company and the Count Tassilo Szechenyi Trust against Phelps in the estate proceedings. AmeriFirst planned to challenge a number of sales and disbursements of the Count's property and assets made by Phelps. As Phelps recalls, "Rodez informed MacNamara that if he represented AmeriFirst..., such representation would probably be unethical and might present a conflict of interest."
More than two-and-a-half years later, in legal papers filed in the estate proceedings, MacNamara would acknowledge what Phelps by then had come to suspect: Beginning on June 16, 1988 - five days before meeting Phelps for the first time - MacNamara billed more than $164,000 to AmeriFirst for legal assistance to the Count Tassilo Szechenyi Trust. By the time he signed a retainer to work for Phelps, MacNamara was already on the payroll of Phelps's nemesis, Richard Jackson. Phelps and Rodez claim that MacNamara, while representing Phelps, was in fact nothing more than AmeriFirst's secret agent, sent to hoodwink the Count's personal representative into relinquishing control of the estate. "The motive," Phelps alleges, "was the unjust enrichment of both MacNamara and Jackson personally, as well as collecting substantial unearned fees for AmeriFirst. They assumed I would just dry up and blow away."
"Without disclosing to anyone the existence of his attorney/client relationship with AmeriFirst, attorney MacNamara sought to be and was retained by Phelps," Rodez wrote in an August 28, 1991, court memorandum. "Throughout his representation of Phelps, attorney MacNamara stated that he would take all kinds of action on behalf of Phelps, but failed to deliver on his promises. MacNamara's first advice to Phelps was to have [MacNamara's] other undisclosed client, AmeriFirst, or [MacNamara's] friend, Jackson, appointed as co-personal representative of the estate.... When MacNamara first disclosed his representation of AmeriFirst, it was in the form of an adversarial proceeding against Phelps, his former client."
Peter MacNamara declined to be interviewed for this story. "It would be unethical for me to comment on this matter, no matter how untrue these contentions might be, because I'm an officer of the court and a trust fiduciary," he said. But in responding to Phelps's charges of conflict of interest, MacNamara wrote the Florida Bar on October 5, 1990, that "Mr. Phelps confuses this firm's representation of a fiduciary with representation of him in an individual capacity, which never occurred. In representing a fiduciary, an attorney's duty runs not to the individual but to...trust beneficiaries, and estate beneficiaries and creditors." In other words, when MacNamara represented Phelps, his allegiance was owed not to Phelps specifically but to the Count's beneficiaries in the abstract. Since the normal sort of attorney-client relationship did not exist, there wasn't any conflict of interest when MacNamara worked for both AmeriFirst and Phelps.