When a lawyer represents the executor or trustee (the fiduciary) in an estate or trust matter, does the fiduciary's duty to the beneficiaries give the lawyer special duties to those beneficiaries, or change the lawyer's confidentiality duty?

Plain-English summary

The committee was asked whether any exceptions to the Model Rules apply only to lawyers who represent the fiduciary in a trust or estate matter. It found none. The opinion addressed the situation where the lawyer represents only the fiduciary, not the beneficiaries, and expressly did not reach the conflicts that arise when a lawyer represents both fiduciary and beneficiary on the same subject matter.

The committee held that "[w]hen the fiduciary is the lawyer's client, all of the Model Rules prescribing a lawyer's duties to a client apply." The scope of the representation is set by Rule 1.2, the lawyer must act with diligence under Rule 1.3, and the lawyer must preserve the fiduciary's confidences under Rule 1.6, just as in any other representation. The central holding is that the fiduciary's own obligations to the beneficiaries do not transform the lawyer's role: they "do[] not in itself either expand or limit the lawyer's obligations to the fiduciary client under the Model Rules, nor impose on the lawyer obligations toward the beneficiaries that the lawyer would not have toward other third parties." Most pointedly, "the lawyer's obligation to preserve the client's confidences under Rule 1.6 is not altered by the circumstance that the client is a fiduciary."

The committee flagged that its conclusion rests on the majority view that a lawyer who represents a fiduciary does not also represent the beneficiaries. It acknowledged the law varies: the Comment to Rule 1.7 notes that in estate administration the identity of the client may be unclear, and in some jurisdictions the lawyer owes fiduciary obligations to beneficiaries that can override duties to the fiduciary (citing Charleson v. Hardesty), while in others the client is treated as the trust or estate itself, an "entity as client" under Rule 1.13 (citing Steinway v. Bolden). The opinion stated it "would not necessarily be applicable" in a jurisdiction following one of those minority positions, and that other conflicts under Rules 1.7 and 1.9 may arise if the lawyer also represented a beneficiary in other matters.

Currency note

This opinion was issued in 1994, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments and 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: Does a lawyer who represents an executor or trustee also represent the beneficiaries?

A: Under the majority view the opinion adopted, no; the lawyer who undertakes to represent only the fiduciary does not also represent the beneficiaries, though the committee noted some jurisdictions take a different view.

Q: Does the fiduciary's duty to beneficiaries give the lawyer extra duties to those beneficiaries?

A: The opinion concluded that the fiduciary's obligations to beneficiaries do not, by themselves, impose duties on the lawyer toward the beneficiaries beyond those the lawyer would owe to any third party.

Q: Can the lawyer keep the fiduciary's communications confidential even from the beneficiaries?

A: The committee held that the Rule 1.6 confidentiality duty is not altered by the client's status as a fiduciary, subject to the caveat that some jurisdictions impose fiduciary obligations to beneficiaries that can override it.

Q: Did the opinion address representing both the fiduciary and a beneficiary?

A: No. The committee expressly limited the opinion to representing only the fiduciary and did not reach the conflict-of-interest issues of jointly representing fiduciary and beneficiary on the same matter.

Background and rules framework

The opinion interpreted the core client-duty rules as applied to a lawyer for a fiduciary: Rule 1.2 (scope of representation), Rule 1.3 (diligence), and Rule 1.6 (confidentiality), holding none is modified by the client's fiduciary character. It noted the Comment to Rule 1.7 on the uncertain identity of the client in estate administration, the possibility of conflicts under Rules 1.7 and 1.9, and the "entity as client" framework of Rule 1.13 in jurisdictions that treat the trust or estate as the client. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation)
• MR 1.3 (diligence)
• MR 1.6 (confidentiality of information)
• MR 1.7 (conflict of interest; current clients; estate-administration Comment)
• MR 1.9 (duties to former clients)
• MR 1.13 (organization as client; trust or estate as entity)

Cases:

• Succession of Wallace, 574 So. 2d 348 (La. 1991), majority view that a lawyer for a fiduciary does not also represent the beneficiaries
• Charleson v. Hardesty, 839 P.2d 1303 (Nev. 1992), a lawyer for a fiduciary may owe fiduciary obligations to beneficiaries that can override duties to the fiduciary
• Steinway v. Bolden, 460 N.W.2d 306 (Mich. Ct. App. 1990), view that the client is the trust estate rather than the fiduciary

See also

• ABA Formal Op. 02-426: Lawyer serving as fiduciary for an estate or trust
• ABA Formal Op. 91-361: Representation of a partnership

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 94-380.pdf