| LEO Num | Topics | Summary | Date |
1617
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| A lawyer acting as an executor, trustee, guardian, attorney-in-fact or other fiduciary is bound by the Code. In discussing a lawyer's duty to render accountings, the Bar concludes that the duty varies with the type of fiduciary relationship. However, the duty of accounting may not be waived. | 2/17/1995 |
1387
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| A lawyer acting as executor or trustee could hire the lawyer's own law firm to represent an estate as long as the co-fiduciaries consented. However, the firm would have to withdraw if the executor/trustee had to be a witness in any later proceedings (unless the testimony involved a matter of formality or an uncontested matter, and would not be rebutted by another party). [Under Rule 3.7(c), this disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest.] | 11/30/1990 |
0515
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| A lawyer acting as trustee in a foreclosure proceeding may accept a fee less than the minimum set by law, because the lawyer is not bound by the minimum fee schedule then in effect. [Minimum fee schedules no longer exist.] | 5/2/1983 |
1431
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| A lawyer may not communicate directly with an adversary, even if the adversary is a lawyer acting as a bankruptcy trustee. | 9/16/1991 |
1534
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| A lawyer may not prepare a trust for a godparent (not a blood relative) under which the lawyer is an ultimate beneficiary, even if the lawyer and the godmother "maintained a mother/daughter-like relationship for nearly thirty years." However, it is not per se improper for the lawyer to serve as executor or trustee. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.] | 8/12/1993 |
0411
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| A lawyer may provide free will-writing services to members of a religious organization. The services will create an attorney-client relationship in which the lawyer owes a duty solely to the non-paying client. Although not unethical in every case, it probably would be improper for the lawyer to be named as trustee or executor in such a will. | 4/6/1981 |
1590
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| A lawyer prepared a decedent's will creating two trusts -- for the decedent's son and daughter. The lawyer and the lawyer's wife (who is also a lawyer) serve as trustees for both trusts. After the decedent died, the son and daughter began to quarrel about the trusts. The lawyer represented the daughter in a suit against the son. Because the Code applies to the lawyers' conduct as trustees, the actual conflict between the son and the daughter precludes the lawyer and his wife from continuing to serve as trustees. | 4/11/1994 |
0554
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| A lawyer who is a trustee under a deed of trust may represent the noteholder in a deficiency action against the maker when the noteholder has consented but the maker has not consented. | 4/10/1984 |
0573
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| A lawyer/trustee may invest funds in a bank that does not comply with the trust account requirements, but may not use such a bank if the lawyer has the right to withdraw funds from the trust account. | 5/29/1984 |
1585
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| A Virginia lawyer acts as a Chapter 7 bankruptcy trustee for a corporation and related individuals. Although the trustee does not act as a lawyer, the trustee must comply with the Virginia Code. Therefore, the trustee must resign as trustee for both the corporation and the individuals when it becomes apparent that the corporation has a claim against the individuals. | 6/14/1994 |
0659
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| As long as the former client consents, a lawyer may represent a creditor or proceed as trustee in a foreclosure proceeding against a debtor formerly represented by the lawyer. [This LEO was vacated by LEO 824.] | 2/1/1985 |
1335
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| Because a lawyer acting in a fiduciary capacity is governed by the Code, a lawyer acting as trustee may not undertake activity the lawyer knows is unjustified. | 4/20/1990 |
1358
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| Lawyers drafting a will or trust agreement must be very careful in naming themselves as executors or trustees. It is likely to be improper if the lawyer has not previously represented the client. At a minimum, the lawyer has a duty to advise the client of fees that would be charged by other executors or trustees. If the instrument requires that the estate or trust hire the lawyer's firm for legal services, the client must consent after full disclosure. If a lawyer acting as a fiduciary commits an act that could be disciplined had the relationship been that of an attorney and client, the lawyer-fiduciary may be disciplined by the Bar. | 10/1/1990 |
ABA-426
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| Lawyers may act as personal representatives or trustees under documents the lawyer prepares, but: must obtain a written consent if the lawyer's judgment would be significantly impaired; must advise the client about how the lawyer's compensation will be calculated and whether it is subject to some limits or court approval. Lawyers may also hire their own firms to perform legal work in the administration of the trust or estate, in which case the lawyers generally represent themselves, and not the beneficiaries or the trust or estate as an entity. Even with consent, a lawyer serving as a fiduciary may not take positions adverse to the interests of a beneficiary or the entity. Lawyers acting as fiduciaries generally should not represent beneficiaries in unrelated matters. | 5/31/2002 |
1503
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| The Bar declines to indicate whether a lawyer acting as trustee may assert an attorney's lien over property held in trust. | 12/14/1992 |
1515
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| This LEO outlines the principle governing a lawyer acting as executor or trustee: a pre-existing attorney-client relationship is not necessary, but is one factor showing the propriety of the lawyer's selection. The lawyer must fully disclose the fees that will be charged (preferably in writing) and "has a duty to suggest that the client investigate potential fees of others who might otherwise provide such services." A lawyer acting as executor or trustee may hire the lawyer's own law firm to represent him or her as long as there is full disclosure (including "the general compensation to be paid to the law firm") and consent (if the client is already dead, the beneficiaries can consent). A lawyer acting as a fiduciary is governed by the Code. A lawyer may solicit designation as a fiduciary as long as there is no overreaching or fraud. (Approved by the Supreme Court 2/1/94) | 2/1/1994 |