In re Ersoff (2026): Contested Wills, “Intestate” Probate Petitions, and the Knowledge Threshold for Candor Violations

1. Introduction

In re Ersoff, 375 Or 43 (2026), is an Oregon lawyer discipline decision addressing how the duty of candor applies when a lawyer files an ex parte probate petition alleging a decedent “died intestate” while simultaneously contesting a facially valid will in related litigation.

The Oregon State Bar charged attorney Isaac Ersoff with violating RPC 3.3(a)(1), RPC 3.3(a)(4), and RPC 8.4(a)(4) after he filed (1) a trust-and-will contest case attaching the 2017 will and (2) a separate probate case seeking administration of an “intestate” estate, without mentioning the 2017 will in that probate petition. The key issues were:

  • whether alleging “died intestate” was a knowingly false statement when the will’s validity was actively disputed;
  • whether failing to disclose the will in the probate case was a knowing violation of disclosure duties to the tribunal; and
  • whether the omission, even if not “knowing,” was “prejudicial to the administration of justice.”

2. Summary of the Opinion

The Supreme Court of Oregon (per curiam) affirmed the trial panel and dismissed the complaint. The court held:

  • No RPC 3.3(a)(1) violation for the statement “died intestate,” because “intestate” is a legal status (no valid will), and the will’s validity was an open question being litigated.
  • The statement was potentially misleading, and respondent was legally obligated to disclose the existence of the challenged will to the judge deciding the ex parte probate petition; however, the Bar did not prove respondent knowingly failed to accomplish that disclosure.
  • No RPC 8.4(a)(4) violation, because—on these facts—the single omission did not cause, and did not pose a substantial risk of causing, substantial prejudice to the administration of justice.

3. Analysis

3.1. Precedents Cited

Standard of proof and review

  • In re Nisley, 365 Or 793 (2019): Cited for the “clear and convincing evidence” standard (“highly probable”). The court used Nisley to frame the Bar’s burden across all charged rules.

False statements vs. plausible legal positions (RPC 3.3(a)(1))

  • In re Boardman, 312 Or 452 (1991): Boardman illustrates a classic RPC 3.3-type misrepresentation where the lawyer “knew” the real-world adjudicative facts (who was appointed personal representative) and nonetheless represented the opposite. In Ersoff, the court distinguished that kind of factual falsity from a good-faith legal characterization of an unresolved validity question.
  • In re Paulson, 346 Or 676 (2009), adh'd to as modified on recons, 347 Or 529 (2010): Paulson is another “patently not true” case—misstating that a suspension was “on appeal” when no appeal was pending. Ersoff uses Paulson to contrast objectively false procedural representations with contested legal conclusions.
  • In re Marandas, 351 Or 521 (2012): The pivotal comparator. Marandas held that repeatedly asserting a plausible interpretation of an “open question” (confidentiality obligation) was not a knowing false statement. Ersoff extends that reasoning to probate phrasing: “died intestate” can be a plausible legal position when the will’s validity is actively disputed.

Omissions as misrepresentations; candor in ex parte settings

  • In re Kluge, 335 Or 326 (2003) and In re Greene, 290 Or 291 (1980): Both are cited for the principle that a misrepresentation can be an omission and that “half-truth or silence” can be a misrepresentation. Ersoff uses these to accept the Bar’s core theory: even if “intestate” was not strictly false, the omission of the will could mislead.
  • Reynolds v. Givens, 37 Or App 785 (1978): The court treated Reynolds as articulating a probate-specific disclosure principle: even if counsel doubts validity, “there is no justification for failing to disclose” a known purported will. Ersoff aligns that principle with modern RPC candor doctrine.
  • In re Barnes, 281 Or 375 (1978): Used to emphasize that candor obligations focus on the judge making the decision—Barnes condemned obtaining a warrant from one judge without disclosing a pending challenge before another.

Defining “tribunal” and the relevant decision-maker

  • Doe v. Corp. of Presiding Bishop, 352 Or 77 (2012): Cited for the concept that “court” can mean an institution or the judge(s) deciding a matter. Ersoff uses this to reject the trial panel’s reasoning that filing in the same circuit court necessarily informed the “tribunal.”

“Knowledge” as a mental state (RPC 3.3(a)(1) and RPC 3.3(a)(4))

  • In re Conry, 368 Or 349 (2021): The key authority on “knowledge.” Conry distinguishes knowing misconduct (awareness of essential facts) from negligence (should have known). Ersoff relies on Conry to hold that proving respondent “should have known” was not enough; the Bar had to prove he knew his actions failed to disclose the will to the deciding judge.

RPC 8.4(a)(4): improper conduct + prejudice; “single incident” substantial harm

  • In re Claussen, 322 Or 466 (1996): Cited for the proposition that RPC 8.4(a)(4)’s focus is on the effect on justice, not the lawyer’s mental state.
  • In re Ard, 369 Or 180 (2021): Supplies the three-part framework (improper conduct; during a proceeding; prejudicial effect).
  • In re Skagen, 342 Or 183 (2006): Defines “improper” as doing what should not be done or failing to do what should be done. Ersoff uses Skagen to label the non-disclosure “improper” even though it was not proven “knowing.”
  • In re Maurer, 364 Or 190 (2018) and In re Lawrence, 350 Or 480 (2011): Provide the “substantial harm” requirement for a single incident. Ersoff uses those cases to reject abstract prejudice arguments and insist on substantial actual or potential harm on the facts presented.
  • In re McGraw, 362 Or 667 (2018) and In re Marandas, 351 Or 521 (2012): Address when non-violations of other rules may bear on “improperness.” Ersoff clarifies it is not necessary to prove another RPC violation to find “improper” conduct under RPC 8.4(a)(4), but prejudice still must be shown.

3.2. Legal Reasoning

(a) “Died intestate” as a legal conclusion on an open question

The court anchored its analysis in the statutory definition: ORS 111.005(20) defines “intestate” as dying “without leaving a valid will.” Because respondent was actively litigating the 2017 will’s validity, the statement “died intestate” was not treated as a factual assertion that “no will exists,” but as a contested legal conclusion. The court expressly noted it would be different if respondent had stated the decedent died “without a will,” which would be a factual falsity.

(b) A disclosure obligation existed—and it ran to the judge deciding the ex parte petition

Even though the “intestate” statement was not knowingly false, the court held it was “potentially misleading” absent disclosure of the will. It identified overlapping sources that make the existence of a purported will material in an ex parte probate opening:

  • Reynolds v. Givens (probate disclosure norm);
  • ORS 113.035(2), (10) (probate petition content, including testate/intestate and will possession);
  • RPC 3.3(d) (ex parte disclosure of all material facts needed for an informed decision);
  • Greene (heightened need for candor ex parte);
  • UTCR 3.130 and ORS 9.460(2) (reinforcing disclosure and anti-artifice principles).

Critically, the court rejected the trial panel’s view that filing the will contest in the same circuit court satisfied the duty to the “tribunal.” Applying RPC 1.0(p) and drawing on Barnes, it held the relevant “tribunal” was the judge assigned to decide the probate petition.

(c) Why the Bar still lost: failure to prove “knowingly”

Having found an objective legal duty to disclose, the court nonetheless required proof that respondent knew he had failed to accomplish disclosure to the decision-maker. The court emphasized:

  • respondent filed the will contest (with the will attached) the day before the probate petition;
  • both were captioned in the “probate department” and involved the same court, parties, and overlapping issues;
  • respondent viewed the probate as essentially dormant unless the trust contest freed assets for probate;
  • there was no proven intent to advance distributions in the probate case while validity issues were pending.

The court distilled an important clarification (see footnote 10): while lawyers are not excused from knowing the duty of candor, a knowing violation requires proof the lawyer knew that, “under the circumstances,” the disclosure had not been accomplished.

(d) RPC 8.4(a)(4): improper omission, but no substantial prejudice on these facts

The court held the omission was improper (Skagen), but it was a single incident and thus required proof of substantial actual or potential harm (Maurer; Lawrence). The Bar’s prejudice theories failed because:

  • the probate opening order largely maintained the status quo;
  • Montre was personal representative under the 2017 will as well, reducing appointment-related risk;
  • the only probate asset was tied up in the trust and not shown to be jeopardized by the initial intestate filing;
  • the contemporaneous will-and-trust contest mitigated systemic risk, including by putting the dispute in front of counsel and the same court system promptly.

3.3. Impact

  • Probate candor rule sharpened: If you seek to open an “intestate” estate ex parte while aware of a purported will—even one you believe invalid—you must disclose the will to the judge deciding the probate petition. Filing related litigation in the same court is not, by itself, treated as disclosure to the “tribunal.”
  • Discipline hinges on proof of “knowledge” for RPC 3.3(a)(1) and RPC 3.3(a)(4): The decision reinforces (via Conry) that “should have known” is insufficient for these charges; the Bar must prove the lawyer knew the essential circumstances that made the omission a failure of disclosure to the decision-maker.
  • RPC 8.4(a)(4) remains fact-intensive: Even “improper” conduct will not support discipline absent substantial harm or substantial risk of substantial harm when the matter is a single incident.
  • Pleading strategy consequences: Splitting a combined probate/contest filing into separate cases without cross-references creates foreseeable candor and case-management problems; Ersoff signals that the safer course is explicit disclosure (and, practically, cross-referencing) to the assigned judge.

4. Complex Concepts Simplified

  • “Intestate”: Not “no will exists,” but “no valid will exists.” A will can exist yet the decedent may be “intestate” if the will is invalid.
  • “Ex parte” proceeding: A request to the court made without the opposing side present to provide balance. That is why RPC 3.3(d) imposes extra disclosure duties.
  • “Tribunal”: Often practically means the actual decision-maker (the judge) who will rule on the application, not merely the courthouse or judicial district as an institution.
  • “Knowingly”: In discipline, it generally means awareness of the essential facts that make the conduct a violation—not merely that the lawyer intended harm, and not merely that the lawyer should have known better.
  • RPC 8.4(a)(4) “prejudicial to the administration of justice”: Focuses on harmful effects (or substantial risk of them) to parties’ rights or court processes. For a one-off mistake, Oregon requires “substantial” harm or risk.
  • “Clear and convincing evidence”: A high evidentiary burden in discipline—more than “more likely than not,” less than “beyond a reasonable doubt.”

5. Conclusion

In re Ersoff delivers a nuanced candor holding for probate practice: alleging “died intestate” while contesting a will may be a permissible legal position on an unresolved validity question, but the lawyer still has a legal duty—especially in ex parte probate openings—to disclose the existence of a known purported will to the judge deciding the petition. Nonetheless, discipline under RPC 3.3(a)(1) and RPC 3.3(a)(4) requires proof the lawyer knew the disclosure was not effectively made to that decision-maker, and a single improper omission will not violate RPC 8.4(a)(4) absent substantial actual or potential prejudice on the specific facts.