| LEO Num | Topics | Summary | Date |
0856
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| [WITHDRAWN 9/16] A lawyer may offer free estate planning seminars to church members (with no intent to solicit other business) and may accept other business if a church member wants to retain the lawyer. | 11/10/1986 |
0285
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| A Commonwealth's Attorney may not represent the estate of the deceased in a wrongful death action when the lawyer participated in a hearing involving criminal charges against the potential defendant. | 1/30/1978 |
1315
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| A decedent died after transferring accounts and placing items in a safety deposit box. Plaintiff challenges the transfer and disputes ownership of the safety deposit box's contents. The plaintiff has sued both administrators -- one of which is a lawyer. The same firm cannot represent both administrators if there is a dispute between them about the transfer or the ownership of the box's contents. The lawyer-administrator's partner may undertake the representation even if the lawyer must be a witness, as long as the issues do not relate to the firm or its legal work, and provided that the lawyer does not intend to perform any advocacy functions in the future. | 2/15/1990 |
1668
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| A law firm may represent the defendant beneficiaries in a will contest even though a lawyer at the firm prepared the will and non-lawyer employees witnessed the will, because: (1) the lawyer preparing the will was no longer at the firm, and the witness-advocate rule only applies if the lawyer/witness still practices at the firm; and (2) the witness-advocate rule does not apply when non-lawyer employees are called as witnesses. | 2/28/1996 |
0973
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| A law firm which intends to provide will-preparation packages for church members and supply updates to the members every year has an ethical duty to advise the members of any significant legal changes, because the attorney-client relationship will extend from year to year. | 10/5/1987 |
1283
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| A law firm's policy of routinely omitting self-proving clauses from wills it prepares is inconsistent with the requirement to vigorously represent clients. | 9/21/1989 |
0370
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| A lawyer acting as an estate's executor may be adverse to the residuary legatee of the estate on an unrelated matter. | 4/4/1979 |
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 |
0571
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| A lawyer is not per se prohibited from writing a testamentary document in which the lawyer or a member of the family is a beneficiary, as long as the lawyer is related to the donor. However, the lawyer must be careful to exercise independent professional judgment. [Under Rule 1.10(a), this disqualification is now imputed to the lawyer's entire firm.] | 4/20/1984 |
0708
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| A lawyer may draft wills for both a wife and husband although the provisions of the wills differ, as long as the lawyer may adequately represent both parties' interests. | 8/6/1985 |
1048
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| A lawyer may not continue to represent beneficiaries of a will when the lawyer will have to be a witness about the signing of the will and inability to find the will. | 3/2/1988 |
0387
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| A lawyer may not discount fees for preparing a will contingent on the client's contributing money to a charity which advertises the lawyer's services. | 9/12/1980 |
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 |
0947
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| A lawyer may not represent a client in a will dispute when the lawyer's partner represents ("even in the smallest way") the adverse party in an unrelated matter. The Bar "does not believe that a firm or an individual attorney may ethically represent a given client at the same time that they are suing the same client, regardless of whether or not the matters in the separate litigation are the same or substantially related." | 6/25/1987 |
0595
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| A lawyer may not represent an estate in attempting to recover the proceeds of a note payable to the decedent (thus treating the note as an asset of the estate), while also representing the trustee in decedent's bankruptcy (treating the note as an asset of the bankrupt estate). | 8/10/1984 |
0257
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| A lawyer may not represent estate beneficiaries objecting to a final accounting by an executor-lawyer with whom the lawyer had previously been associated (while the other lawyer was acting as executor). | 1/6/1975 |
0271
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| A lawyer may not represent the estate in a death action after talking with the surviving spouse who will be a defendant in the action. | 10/27/1975 |
0378
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| A lawyer may not reveal the contents of or existence of a client's will. | 7/15/1980 |
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 |
1778
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| A lawyer may represent a husband both in his role as administrator of an estate and in his role as individual beneficiary in litigation "regarding whether certain real estate belongs in the augmented estate." Although the husband has different roles, he must be considered the same client for conflicts purposes. | 5/19/2003 |
0811
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| A lawyer may represent an estate administrator even if the lawyer's firm is a creditor of the estate, as long as the administrator consents. | 6/25/1986 |
0735
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| A lawyer may serve as co-executor of an estate and a full-time Assistant Commonwealth's Attorney. | 11/1/1985 |
0599
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| A lawyer may use the firm's tax identification number to open an account when the beneficiary's tax identification number is unknown and the beneficiary is unavailable. | 6/18/1984 |
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 |
1519
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| A lawyer prepared a will for a client, but the client died before signing the will. Upon request, the lawyer must turn over the unexecuted will and the rest of the file to the deceased client's personal representative (assuming no fees are owed). [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.] | 5/11/1993 |
1296
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| A lawyer represented a husband and wife in preparing a contract for joint wills. After the husband dies, the wife's daughter tells the lawyer that her mother destroyed the contract and intends to prepare a new will in defiance of the contract.Because the lawyer was not representing the wife when this alleged activity took place, any fraud had not occurred "during the course of the representation" and the lawyer was therefore not governed by the Disciplinary Rule permitting disclosure of fraud on third parties that occurred during the course of the representation. | 10/25/1989 |
ABA-380
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| A lawyer representing a fiduciary owes a duty to the fiduciary and not to the beneficiaries. | 5/9/1994 |
0340
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| A lawyer representing an estate may purchase an estate asset if all interested parties consent. [Under Rule 1.8(a), a lawyer may not enter into a "business transaction" with a client unless the client is given an opportunity to seek independent advice, and there has been full disclosure and consent in writing.] | 11/2/1979 |
0287
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| A lawyer representing an estate's administrator is not obligated to disclose the administrator's embezzlement if the stolen money is to be repaid. [It would seem inevitable that the lawyer would eventually have to reveal the embezzlement or else assist in the filing of a fraudulent accounting or other document.] | 1/30/1978 |
1599
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| A lawyer representing an executor and one of two beneficiaries: does not have a conflict unless the lawyer also represents the other beneficiary; must advise the client that communications with the client as beneficiary may not be entitled to attorney-client privilege protection, because communications with the client as fiduciary may similarly not be protected from disclosure to the beneficiaries; has "no attorney-client relationship with the beneficiaries of the estate other than the executor;" has no "derivative duty" to the other beneficiary by virtue of the client's fiduciary duty (as executor) to the other beneficiary, although the lawyer must "be alert to indications that [the other beneficiary] does not understand the attorney's role;" may not advise or represent the executor in actions that breach the executor's fiduciary duty; does "not take on the executor's duties to the beneficiaries simply by performing the executor's administrative tasks;" may not charge for any services rendered to the client in the client's capacity as a beneficiary. | 8/12/1994 |
1547
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| A lawyer representing the administrator of a decedent's estate (who is also a potential wrongful death beneficiary) may not also represent other purported relatives, because the administrator and the other purported relatives take differing positions on the decedent's paternity. The conflict cannot be cured by disclosure and consent. The lawyer representing the defendant may contact the purported relatives ex parte because they are not currently represented by counsel. The defendant's lawyer may not give any advice "other than the advice to secure counsel," and "may not state or imply that he is disinterested in the matter." | 8/12/1993 |
1487
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| A lawyer representing the executor of an estate sought a general release from the widow. The Bar needed more facts before determining whether an attorney-client relationship existed between the lawyer and the widow. If it did, a general release would be per se improper. Because the lawyer was acting as a fiduciary even if not as a lawyer, "such a general release is not a good practice and does not follow the spirit of the Disciplinary Rule." | 11/16/1992 |
1452
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| A lawyer retained by a personal representative of an estate has an attorney-client relationship with the executor or other personal representative and not the beneficiaries. | 3/13/1992 |
1206
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| A lawyer serving as the executor of an estate and representing three children in an action filed by a fourth may represent all of the children in an unrelated real estate transaction if all consent. | 4/3/1989 |
1720
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| A lawyer who acted as co-administrator of an estate did not represent the estate or the beneficiaries, but rather "was his own client for practical purposes." After withdrawing as administrator, the lawyer could not represent a beneficiary's executrix in litigation involving estate assets (unless the successor administrator consented) because the representation would be adverse to the estate and was "substantially related" to the lawyer's previous representation of himself or herself as administrator ("substantial relatedness between the matters in a former representation and a current representation is a fact-specific inquiry from case to case . . . in previous opinions, substantial relatedness depended upon whether the same parties, the same subject matter, or the same issues were present. The committee referred to cases to find substantial relatedness in terms of the matters or the issues being essentially the same, arising from substantially the same facts, being by-products of the same transaction, or entailing a virtual congruence of issues of patently clear relationship in subject matter.").On the other hand, the lawyer could represent the beneficiary's executrix in litigation over real estate which was never part of the probate estate and therefore not within the scope of the lawyer's role as administrator. There may also be fiduciary duties or statutes that would apply. | 12/2/1998 |
0269
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| A lawyer who acted as Commissioner in Chancery in overseeing an estate may not then file an action on behalf of the beneficiaries of the estate. | 9/15/1975 |
0273
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| A lawyer who prepared a will and interviewed the testator in presence of a beneficiary may not represent the beneficiary in an action alleging undue influence, because the lawyer is a potential witness. | 12/3/1975 |
0312
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| A lawyer who prepares clients' wills may send them letters encouraging them to have the lawyer review the will. | 4/4/1979 |
1811
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| A lawyer who previously represented a co-executor of an estate must follow the former client's directions and refuse to provide documents to the other co-executor's lawyer, despite an agreement among the co-executors that they would share financial information; although lawyers may disclose client confidences to comply with a "law or a court order," the co-executors contract is not "law"; any dispute about the contract should be handled by the lawyer currently representing the co-executor. | 4/25/2005 |
0648
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| A lawyer who previously represented an estate in a wrongful death case that has been settled may now represent another client against a third party who contributed to the decedent's death. Although the matters are substantially related, the estate and the prospective new client are not adverse to one another, and both have consented. | 1/9/1985 |
0309
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| A lawyer who receives a deed that is part of an estate holds the deed as a fiduciary and may not return it to the party who gave the lawyer the deed. | 12/12/1978 |
1561
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| A wife is injured in a car accident in which her husband is killed. A lawyer represents her in suing the husband's estate for negligence, and the case is settled. One year later, the wife (now administratrix of her husband's estate) sues a third party, claiming that it negligently caused the accident. The lawyer's current representation of the wife against the third party does not violate the Code because the wife "is in a position to waive any conflict both as administratrix of the estate and on her own behalf." | 12/14/1993 |
1159
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| An Assistant United States Attorney may act as executor for an estate naming the United States as sole beneficiary despite being employed by the beneficiary, because a private lawyer will represent the estate and the Assistant United States Attorney will therefore act as executor and not counsel. | 1/4/1989 |
ABA-434
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| Because a will beneficiary normally has only an expectancy in receiving money from the testator, a lawyer representing a potential beneficiary in unrelated matters may assist the testator in disinheriting the beneficiary (although the lawyer might decline the assignment). This situation differs from a lawyer asked to advise one client "as to his rights under a contract with another client of the lawyer, or as to whether the statute of limitations has run on potential claims against, or by, another client of the lawyer" which the conflicts rules prohibit, because they involve legal rights there are no similar legal rights involved in a will, "except where the testator has a legal duty to make the bequest that is to be revoked or altered." There is a "heightened risk" that the lawyer's representation of the testator will be "materially limited" by the lawyer's duty to the beneficiary if the lawyer advises the testator "whether, rather than how, to disinherit the beneficiary." | 12/8/2004 |
0728
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| If both the husband and wife consent, a lawyer may represent both of them in preparing wills that preclude changing beneficiaries following the death of the first to die. | 11/11/1985 |
0260
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| It is not improper for a lawyer representing an executor-beneficiary to fail to advise another beneficiary whose interests "potentially" conflict with those of the executor-beneficiary to hire another lawyer, but the executor has a fiduciary duty to advise the other beneficiary to hire another lawyer. | 5/16/1975 |
0258
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| It is not per se improper for a lawyer to be named as executor in a will the lawyer prepares for a client. | 2/11/1975 |
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 |
1472
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| The lawyer for a divorced wife may not represent the estate of the former husband. | 8/24/1992 |
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 |
1473
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| Three co-executors each hired their own lawyer and a fourth lawyer to represent the estate. The fourth lawyer had an attorney-client relationship with all three executors. The executors later became trustees, and began to quarrel. The fourth lawyer may not continue to represent two of the executor/ trustees unless the third one consented. | 9/1/1992 |