Can a lawyer who represents the executor or administrator of an estate also sign as surety on the personal representative's bond?

Plain-English summary

An attorney who represented the administrator or executor of an estate signed his client's bond as surety. The committee was asked whether a lawyer for the personal representative of an estate may act as surety on the client's bond. The committee noted that Illinois probate law required the personal representative to file an approved bond with at least two acceptable sureties, and that the attorney-client relationship runs between the personal representative and the attorney, so the propriety question is controlled by that relationship.

The committee identified several conflicts. Under Rule 5-101(d), a lawyer may not reveal or use a client's confidence or secret to his own advantage; during the representation the lawyer might learn of the representative's errors or omissions that could give rise to bond liability. If the representative were insolvent, the sureties would have to perform, exposing the lawyer-surety to personal liability, yet the lawyer could not reveal the client's error without consent. The committee found this places the lawyer's interests in conflict, or potential conflict, with the client's, and reasoned that the rationale of Rule 5-105(d) (ceasing employment where independent judgment would be adverse to a client) applies equally to a conflict between lawyer and client.

The committee added two further grounds. By acting as surety, the lawyer guarantees financial assistance to the client on a matter directly tied to the pending probate, which Rule 5-103(d) prohibits ("a lawyer shall not advance or guarantee financial assistance to his client" in connection with litigation). And the surety arrangement may be a business transaction with a client under Rule 5-104(a), permitted only with consent after full disclosure where interests conflict. Combining the potential for conflict, the guarantee of financial assistance, and the business nature of the principal-surety relationship, the committee concluded that an attorney representing the personal representative is precluded from acting as surety on the client's bond.

Currency note

This opinion was issued in 1983, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.7 and 1.9), noting Opinion 90-25, while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer for an estate's executor act as surety on the executor's bond?

A: The opinion concluded no; combining the potential conflict, the guarantee of financial assistance, and the business nature of the surety relationship, the committee held the lawyer is precluded from serving as surety on the client's bond.

Q: Why is the surety role a problem?

A: Per the opinion, the lawyer might learn of the representative's errors that trigger bond liability but could not reveal them without consent (Rule 5-101(d)), exposing the lawyer-surety to personal liability and placing his interests in conflict with the client's.

Q: Which rule about financial assistance applied?

A: The committee invoked Rule 5-103(d), under which a lawyer shall not advance or guarantee financial assistance to a client in connection with pending litigation; acting as surety guaranteed such assistance in the probate matter.

Background and rules framework

The opinion applied former Illinois Code Rule 5-101(d) (confidences and secrets), Rule 5-105(d) (ceasing conflicting employment), Rule 5-103(d) (no advancing or guaranteeing financial assistance to a client in litigation), and Rule 5-104(a) (business transactions with a client where interests conflict, curable only by consent after full disclosure). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 and 1.9, corresponding to ABA Model Rules 1.7 (concurrent conflicts) and 1.9 (former clients), with the financial-assistance and business-transaction limits now in Model Rule 1.8(e) and 1.8(a).

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 5-101(d), 5-103(d), 5-104(a), 5-105(d) (applied in the opinion)
• Illinois RPC 1.7, 1.9 (2010 equivalents per the Board's affirmation)
• MR 1.7 (concurrent conflicts); MR 1.8 (business transactions with and financial assistance to clients); MR 1.9 (former clients)

Statutes:

• Ill. Rev. Stat. ch. 110 1/2, Sections 12-2 and 12-3 (personal representative's bond and sureties)

See also

• ISBA Ethics Op. 84-14: Lawyer Acting as Real Estate Broker
• ISBA Ethics Op. 870: Representing a Client's Competitor
• ISBA Ethics Op. 790: Suing a Former Joint Client

Source

• Landing page: https://www.isba.org/ethics/opinions/802