Opinion #47. Representing Both Personal Representative and Beneficiaries of the Estate

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 copersonal representatives jointly and not the estate. This assumption is based on the language of 18A M.R.S.A. § 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(1) 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 attorneys fees are usually allowed to be paid from the estate.


Enduring Ethics Opinion