Must the lawyer for an estate disclose to the probate court that the guardian took estate money, even under a claim of right?

Plain-English summary

An attorney established a guardianship on a pro bono basis for a person in a nursing home; the guardian initially reported bank accounts totaling under $12,000. After the disabled person died and the attorney was asked to help close the guardianship, information showed the estate held stocks, bonds, and cash exceeding $100,000. The attorney prepared inventories, to which the guardian did not object, and the guardian then took $30,000 the attorney believed clearly belonged to the estate, claiming ownership and refusing to return it. The attorney asked whether he may, and must, disclose the taking to the court, and whether and how he may withdraw.

The opinion concluded that, assuming the guardian did not reasonably believe the attorney represented her personally, the attorney's knowledge of the taking was neither privileged nor a secret under Rule 1.6, because the attorney's clients were the estate and the guardian only in her capacity as guardian. The attorney could report the taking to the State's Attorney if he believed grounds for criminal prosecution existed, and as attorney for the estate he had to file a report with the probate court making full disclosure, including both inventories and the fact that the guardian took $30,000. If a dispute arose or the attorney was likely to become a witness, he should petition for appointment of a special representative for the estate (Rule 3.7).

The opinion concluded there was no obligation to withdraw on these facts based on a risk of improper disclosure of confidences or secrets, though withdrawal might be required if the attorney was likely to be a witness (Rule 3.7(a)). Any voluntary withdrawal under Rule 1.16 would still require compliance with Rule 1.16(d) (reasonable steps to avoid foreseeable prejudice), so a report of the taking should be filed even on withdrawal. Citing Rule 3.3(a)(2) and (a)(6) (candor to a tribunal; not assisting a client's criminal or fraudulent act) and Rule 4.1(b) (disclosure to a third person to avoid assisting fraud unless prohibited by Rule 1.6), the opinion concluded the attorney would face exposure to discipline and civil liability if he failed to disclose, and that even a taking under a claim of right required the attorney to take steps to protect the estate and have the propriety of the taking determined.

Currency note

This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rules 1.2(d), 1.6, 1.16, 3.3(a)(3), 3.7, and 4.1(b)), while noting 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: Must the estate's lawyer tell the probate court the guardian took estate money?

A: The opinion concluded the lawyer, as attorney for the estate, must file a report with the probate court making full disclosure of the taking, including the inventories and the $30,000 the guardian took.

Q: Is the guardian's statement protected by privilege or confidentiality?

A: No. The opinion concluded that because the guardian was represented only in her capacity as guardian and not personally, the information was neither privileged nor a secret under Rule 1.6.

Q: Does it matter that the guardian claimed the money was hers?

A: The opinion concluded that even a taking under a claim of right required the lawyer to protect the estate and have the propriety of the taking determined, or risk his and the guardian's actions later being found fraudulent.

Q: Must the lawyer withdraw?

A: The opinion concluded withdrawal was not required to avoid improper disclosure on these facts, though it might be required if the lawyer was likely to be a witness; in any event a report of the taking should still be filed.

Background and rules framework

The opinion interpreted Rule 1.6 (confidences and secrets) to identify whose information was protected, then applied Rule 3.3(a) (candor to a tribunal; not assisting client fraud), Rule 4.1(b) (disclosure to third persons to avoid assisting fraud), Rule 3.7 (lawyer as witness), and Rule 1.16 (withdrawal and its duty to avoid prejudice) (Model Rules 1.6, 3.3, 4.1, 3.7, 1.16).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6
• Model Rule 3.3 (candor toward the tribunal) / Illinois Rule 3.3(a)(2), (a)(6)
• Model Rule 4.1 (truthfulness to others) / Illinois Rule 4.1(b)
• Model Rule 3.7 (lawyer as witness) / Illinois Rule 3.7(a)(1)-(4)
• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16, 1.16(d)

See also

• ISBA Ethics Op. 93-03: Reporting Loans; Disputed Funds
• ISBA Ethics Op. 95-14: Client Fraud on the Court
• ISBA Ethics Op. 13-05: Client's False Evidence to a Tribunal

Source

• Landing page: https://www.isba.org/ethics/opinions/9124