Can a lawyer who represents a decedent's estate also file a third party's claim against that estate and seek a fee from the estate for collecting it?

Plain-English summary

The inquiry asked whether it violated the Canons for an attorney representing a decedent's estate to file a claim on behalf of a third party against that estate and request an attorney's fee from the estate for the collection of the claim.

The Committee was of the opinion that such conduct violates Canon 6, which prohibits the representation of conflicting interests. Some members were also of the opinion that the conduct violates Canon 34. The vote was 9-0.

Currency note

This opinion was issued in 1953, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; conflicting interests are now addressed by ABA Model Rule 1.7. Treat this page as historical context, not current guidance.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: Can the estate's lawyer pursue a third party's claim against the same estate?

A: No. The Committee found that filing such a claim against the estate the lawyer represents is representing conflicting interests in violation of Canon 6 (9-0).

Q: Did seeking a fee from the estate matter to the result?

A: The question posed combined filing the third party's claim with requesting an attorney's fee from the estate for collecting it; the Committee held the combined conduct violated Canon 6, with some members also citing Canon 34.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), with some members also citing Canon 34, applied to a lawyer simultaneously serving the estate and a claimant against it. The modern analog is ABA Model Rule 1.7 (conflict of interest: current clients).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)
• Texas Canon 34 (cited by some members)

See also

• TX Ethics Op. 74: Creditors' Lawyer Taking an Estate Fee
• TX Ethics Op. 71: Will Drafter as Executor or Beneficiary
• TX Ethics Op. 65: Firm Conflict Before a City Council

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-66/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_66.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Canons of Ethics for an attorney representing the estate of a decedent to file a claim on behalf of a third party against the said estate and request an attorney's fee from said estate for the collection of said claim?

18 Baylor L. Rev. 225 (1966)

CONFLICTING INTERESTS - ESTATES
An attorney representing the estate of a decedent may not file a claim on behalf of a third party against the estate and request an attorney's fee from the estate for the collection of the claim.

Canon 6.

It is the opinion of this committee that such conduct is a violation of Canon 6, which prohibits the representation of conflicting interests. Some members were also of the opinion that such conduct is a violation of Canon 34. (9-0)

Tex. Comm. On Professional Ethics, Op. 66 (1953)