When a lawyer jointly represents two feuding co-personal representatives of an estate and learns one is abusing her position, must the lawyer withdraw and can she act against the wrongdoer?

Plain-English summary

An attorney was asked by A to help probate her mother's will; the attorney had represented A before and had drafted the mother's will on A's recommendation. A's sister B, named as co-personal representative, agreed to the representation. The attorney later learned that A and B had a poor relationship, that B had taken control of the estate, and that, according to A, B was using estate assets for personal benefit and had coerced a younger sister into letting B borrow against her share. A wanted B to resign but did not want to oust her, and seemed likely to resign herself if B would not. The attorney had written to B about the alleged abuses without response. The attorney asked whom she represented (A, A and B jointly, or the estate), whether she should resign, and whether she owed any duty to the estate or other devisees to redress B's conduct.

The Commission said the threshold question, whom the attorney represents, is governed by state law, not ethics standards, and that it had no special expertise to resolve it. It nonetheless addressed the remaining issues on the assumption that the attorney represents the co-personal representatives jointly, not the estate, an assumption drawn from 18-A M.R.S.A. section 3-715(21), which authorizes a personal representative to employ attorneys to advise or assist the personal representative.

On that assumption, the Commission concluded that if the attorney cannot deal constructively with B she should resign under Bar Rule 3.5(a). Rule 3.4(c) bars continuing multiple employment where the lawyer's independent professional judgment will likely be adversely affected by representing another client, and requires withdrawal where the representation would likely involve differing interests; here the attorney's prior association with and loyalties to A made it difficult to represent B objectively, and A's interest as co-personal representative differed from B's. If A resigns before the attorney does, withdrawal would no longer be mandated, but if B persists in refusing to communicate or follow advice, the attorney would be well advised to seek permission to withdraw under Rule 3.5(c). Finally, on any duty to protect the other devisees, the Commission noted that Rule 3.6(c) directs an attorney to encourage a client to rectify fraudulent acts, but because the information about B's wrongdoing was revealed within the attorney-client relationship, the confidentiality limitation in Rule 3.6(l) appears to prevent the attorney from taking further steps to expose B's alleged misdeeds; the other beneficiaries are generally aware of B's conduct and are free to engage their own counsel.

Currency note

This opinion was issued in 1984, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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, deadline, or requirement mentioned here.

Common questions

Q: Who is the lawyer's client when she is hired to help administer an estate with two co-representatives?

A: The opinion concluded that question turns on state law, which it would not resolve, but it proceeded on the assumption that the attorney represents the co-personal representatives jointly, citing 18-A M.R.S.A. section 3-715(21).

Q: Must the lawyer withdraw when the co-representatives are in conflict?

A: The opinion concluded she should resign under Rule 3.5(a) if she cannot deal constructively with B, because Rule 3.4(c) bars continued multiple employment where her judgment is impaired and the clients' interests differ.

Q: Can the lawyer act to expose or redress the wrongdoer's abuses?

A: The opinion concluded she cannot. Although Rule 3.6(c) encourages a client to rectify fraud, confidentiality under Rule 3.6(l) prevents the attorney from exposing B's alleged misdeeds learned in the representation.

Q: What protects the other beneficiaries?

A: The opinion noted the other beneficiaries are generally aware of B's conduct and are free to engage their own counsel to protect their interests in the estate.

Background and rules framework

The opinion interprets former Maine Bar Rules 3.5(a) and 3.5(c) (withdrawal), 3.4(c) (multiple employment and differing interests), 3.6(c) (encouraging a client to rectify fraud), and 3.6(l) (client confidences). These correspond to ABA Model Rule 1.7 (concurrent conflicts of interest), Model Rule 1.16 (declining or terminating representation), and Model Rule 1.6 (confidentiality). The opinion treats the client-identity question as one of probate law under 18-A M.R.S.A. section 3-715(21).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest); Model Rule 1.16 (withdrawal); Model Rule 1.6 (confidentiality)
• Maine Bar Rules 3.5(a), 3.4(c), 3.5(c), 3.6(c), 3.6(l)

Statutes:

• 18-A M.R.S.A. section 3-715(21) (personal representative may employ attorneys to advise or assist)

Cases:

• Jones v. Silsby, 143 Me. 225, 61 A.2d 117 (1948), attorney's fees as a claim against the personal representative personally

See also

• IL Ethics Op. 21-01: Spouse as Estate Admin and Individual
• ABA Formal Op. 94-380: Counseling a Fiduciary
• TX Ethics Op. 678: Lawyer as Both Executor and Its Counsel

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=90981

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Question

An attorney was requested by A to assist in probating her mother's will. The attorney had represented A previously and had prepared her mother's will upon A's recommendation. A's sister B, who was named in the will as co-personal representative, agreed to the representation.

The attorney has now learned that A and B have had a poor relationship since childhood. Although A initially assumed the principal role in winding up the estate's affairs, she allowed B to take control after the latter had criticized her management abilities. Since that time, however, A has advised the attorney that B has been using assets of the estate for personal benefit and otherwise abusing her position of trust. She was also told by A that B had coerced a younger sister into permitting her to borrow against the sister's share of the estate. A nevertheless does not want to oust B as personal representative although she has requested B to resign. In fact, it appears likely that A herself will resign if B refuses to do so. The attorney wrote to B several months ago informing her of the alleged abuses and requesting her to come in and give her side of the story. B has not responded.

The attorney has asked us whether she represents A, A and B jointly, or the estate. She also inquires whether she should resign and whether she owes any duty to the estate or to the other devisees under the will to take action to redress the consequences of B's misconduct.

Opinion

The initial question posed, upon which the rest depends, is who is the attorney's client. This question must be resolved on the basis of the state laws rather than the application of ethical standards.

The Commission has traditionally been reluctant to offer guidance regarding such matters as to which it has no special expertise. The Commission is nevertheless prepared to address the remaining issues presented on the basis of its assumption that the inquiring attorney represents the co-personal representatives jointly and not the estate. This assumption is based on the language of 18-A M.R.S.A. section 3-715(21) authorizing the personal representative of an estate to "employ persons, including attorneys . . . to advise or assist the personal representative in the performance of his administrative duties."[1]

Assuming that the attorney represents the two sisters in their capacities as personal representative, it seems clear that, if she is unable to deal constructively with B, she should resign pursuant to Bar Rule 3.5(a). Rule 3.4(c) provides that an attorney shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be, or is likely to be, adversely affected by his representation of another client. . . . In the present case, the attorney's previous association with and loyalties to A have made it difficult if not impossible for her to represent B objectively. Moreover, the rule goes on to require withdrawal where such multiple representation would be likely to involve him in representing differing interests. . . . There seems to be little doubt that A's interest as co-personal representative differs from that of B.

If A resigns before the attorney does, the latter's withdrawal would no longer be mandated by the rules. If B persists in her refusal to communicate with the attorney or to follow her advice, however, she would be well advised to request permission to withdraw under the provision of Rule 3.5(c).

Finally, we are asked what obligation, if any, the inquiring attorney has to protect the other devisees or to the estate against the apparent abuses of B. Rule 3.6(c) states that an attorney shall encourage his client to rectify any fraudulent acts of which he may have been guilty. Since the information suggesting wrongdoing on the part of B was revealed to the attorney in the course of the attorney-client relationship, however, the limitation on revealing client confidences or secrets imposed by Rule 3.6(l) would appear to prevent her from taking any further steps to expose B's alleged misdeeds. Moreover, it appears that the other beneficiaries are generally aware of what B has been doing with respect to the estate's assets. They are, of course, free to engage counsel of their own to protect their respective interests in the estate.

Footnote

[1] The quoted language appears to represent a codification of the previously existing common law rule. In Jones v. Silsby, 143 Me. 225, 229, 61 A.2d 117 (1948), the Law Court held that fees for the necessary services of an attorney were a claim against the personal representative personally although reasonable attorney's fees are usually allowed to be paid from the estate.