If the personal representative of an estate is committing fraud, must the lawyer tell the court or the beneficiaries, and may the lawyer keep representing the personal representative?

Plain-English summary

The Committee revisited whether the attorney for a personal representative of an estate has an ethical duty to disclose the personal representative's criminal or fraudulent conduct to the court or the estate's beneficiaries, in light of Alaska's 1993 adoption of the Rules of Professional Conduct and the Alaska Supreme Court's decision in Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995). The opinion concludes the attorney may disclose such conduct under Alaska RPC 1.6(b)(1), but is not required to do so, and modifies the prior Ethics Opinion 91-2 to reflect that permission.

The opinion reaffirms two conclusions from Ethics Opinion 91-2: the attorney's client is the individual serving as personal representative, not the estate or its beneficiaries, and that fiduciary status does not change the client's entitlement to the protections and loyalty due any client. It then explains that Rule 1.6(b)(1) permits, but does not require, disclosure of a confidence or secret to prevent a client from committing a criminal or fraudulent act likely to result in substantial injury to another's financial interest or property, and that Alaska's rule allows broader disclosure than the Model Rules. Because the relevant language is permissive, the attorney commits no ethical violation by choosing not to reveal the conduct.

At the same time, the opinion holds the attorney may not actively assist a client's fraudulent or criminal conduct (Rule 1.2(d)) and may not actively conceal it (Rules 4.1(a) and 3.3(a)), citing ABA Formal Opinion 94-380 (Counseling a Fiduciary). If the client persists in fraudulent or criminal conduct and seeks to hide it from the beneficiaries and the court, the attorney may be forced to withdraw under Rule 1.16(a)(1) (mandatory withdrawal where continued representation would violate the rules or law) or 1.16(b)(1) (permissive withdrawal). The opinion reads the Brandon duty "not to affect adversely the interests of the intended beneficiary" as not converting the permissive disclosure standard into a mandatory one, though it may encourage disclosure, and it modifies Ethics Opinion 91-2 to remove that opinion's flat prohibition on informing beneficiaries or the court.

In practice

Under this opinion, as the Alaska rules stood at the time, a personal representative's lawyer who learns of the client's fraud has discretion, not a duty, to disclose it to the court or beneficiaries under Rule 1.6(b)(1). The opinion holds the lawyer may not actively participate in or conceal the wrongdoing, may not present a false accounting to the court (Rule 3.3(a)) or misrepresent it to beneficiaries (Rule 4.1(a)), and may be required to withdraw under Rule 1.16 if the client persists. It modifies Ethics Opinion 91-2 to remove the earlier flat bar on disclosure and points the lawyer to the Brandon decision when deciding whether to make a permissive disclosure.

Common questions

Q: Must a personal representative's lawyer report the client's fraud to the court or heirs?

A: No. The opinion concludes disclosure under Rule 1.6(b)(1) is permissive; the lawyer commits no violation by choosing not to disclose.

Q: Who is the lawyer's client, the estate or the personal representative?

A: Per the opinion, the client is the individual serving as personal representative, not the estate as an entity or its beneficiaries.

Q: Can the lawyer keep helping a personal representative who is committing fraud?

A: The opinion says the lawyer may not actively participate in or conceal the fraud and, if the client persists in hiding it, may be forced to withdraw under Rule 1.16(a)(1) or (b)(1).

Q: Did Estate of Brandon make disclosure mandatory?

A: The opinion concludes the Brandon duty not to adversely affect the intended beneficiary's interests does not change the permissive disclosure standard, though it may encourage more attorneys to disclose.

Background and rules framework

The opinion interprets Alaska Rules of Professional Conduct 1.6(b)(1) (permissive disclosure of confidences; Model Rule 1.6), 1.2(d) (limits on assisting client crime or fraud; Model Rule 1.2), 4.1(a) and 3.3(a) (truthfulness to third parties and candor to a tribunal; Model Rules 4.1 and 3.3), and 1.16 (withdrawal; Model Rule 1.16). It relies on ABA Formal Opinion 94-380 (Counseling a Fiduciary) and reads the Alaska Supreme Court's decision in Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995), alongside the permissive disclosure standard. It modifies the Committee's earlier Ethics Opinion 91-2.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6(b)(1) (permissive disclosure to prevent client fraud)
• Alaska RPC 1.2(d) (assisting client crime or fraud), 3.3(a), 4.1(a) (candor; truthfulness)
• Alaska RPC 1.16(a)(1), 1.16(b)(1) (mandatory and permissive withdrawal)

Cases:

• Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995), duty not to adversely affect the intended beneficiary

Other opinions cited:

• ABA Formal Opinion 94-380 (Counseling a Fiduciary)
• Alaska Ethics Opinion 91-2 (modified by this opinion)

See also

• ABA Formal Op. 94-380: Counseling a Fiduciary
• ABA Formal Op. 02-426: Lawyer Serving as Estate Fiduciary
• AL Ethics Op. 1995-06: Protecting an Unstable Client

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2003-2.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2003-2
Responsibilities of the Attorney Representing the Personal Representative of an Estate
When the Personal Representative is Engaging in Fraudulent or Criminal Conduct
Question Presented
The Committee has been asked whether a personal representative’s attorney has an
ethical duty to disclose the personal representative’s criminal or fraudulent conduct to the court
and/or the beneficiaries of the estate in light of the adoption of the Alaska Rules of Professional
Conduct (ARPC) in 1993 and the Alaska Supreme Court opinion in the Matter of Estate of
Brandon, 902 P.2d 1299 (Alaska 1995). The Committee concludes that the personal
representative’s attorney may disclose the personal representative’s fraudulent or criminal
conduct to the court or beneficiaries under ARPC 1.6(b)(1), but is not required to do so. Ethics
Opinion 91-2 (Responsibilities of Attorney Representing Personal Representative of Estate When
a Conflict Exists Between the Personal Representative and the Heirs of the Estate) is modified to
reflect the permission to disclose a client’s fraudulent or criminal conduct as set forth in ARPC
1.6(b)(1)1.
Analysis
a. Ethics Opinion 91-2
The view in the majority of jurisdictions is that the attorney for a personal representative
in a probate matter represents the personal representative in his or her capacity as personal
representative, not the estate as an entity nor the individual beneficiaries of the estate.2 Ethics
Opinion 91-2 adopted the majority view.3 Ethics Opinion 91-2 went on to conclude that the
personal representative’s status as a fiduciary does not change the personal representative’s
entitlement to the same protections and loyalty to which every client is entitled:
The opinions discussing the prohibition against disclosure of information adverse

1

ARPC 1.6(b)(1) provides: “(b) A lawyer may reveal a confidence or secret to the extent
the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal or
fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or
substantial injury to the financial interest or property of another.” Alaska’s rule provides for
more disclosure than the Model Rules.
2

See Succession of Wallace, 574 So. 2d 348, 357 (La. 1991)(citing cases). Accord
Alaska Probate Rule 4 (a) which provides: “(a) Entry of Appearance. An attorney representing
the personal representative or any other interested person shall file an entry of appearance with
the court.”
3

“It is clear, therefore, that the attorney handling a probate proceeding is representing
the personal representative and not the estate.” Ethics Opinion 91-2 at 2.

to the personal representative make it clear that a personal representative is
entitled to the same protections and loyalty as any other client, notwithstanding
the fiduciary relationship to the estate. [Emphasis added.]
Ethics Opinion 91-2 at 3.
These two key conclusions of Ethics Opinion 91-2 remain valid: (1) when an attorney is
retained by a personal representative, the attorney’s client is the individual serving as personal
representative, not the estate, and (2) the client’s fiduciary status as a personal representative
does not change the client’s entitlement to the protections and loyalty due to all clients.4
b. Impact of Adoption of Alaska’s Model Rules
ARPC 1.6 provides that a lawyer generally shall not reveal confidences and secrets of a
client. ARPC 1.6(b)(1) permits a lawyer to reveal a confidence or secret to prevent a client from
committing a criminal or fraudulent act which the lawyer believes is likely to result in substantial
injury to the financial interest or property of another. The relevant disclosure language in ARPC
1.6(b)(1) is permissive, not mandatory.5 The attorney does not commit an ethical violation by
choosing not to reveal a client confidence or secret to the beneficiaries or to the court even if
such confidence or secret involves criminal or fraudulent conduct by the client.
However, a lawyer may not actively assist any client in pursuing a course of fraudulent or
criminal conduct. ABA Formal Opinion 94-380, Counseling a Fiduciary, relying on the Model
Rules of Professional Responsibility, explained :
The Model Rules impose a number of limitations on a lawyer representing
a fiduciary. For example, a lawyer may not participate in a breach of fiduciary
duty by the fiduciary that involves fraud or criminal activity because the lawyer’s
conduct is limited by Model Rule 1.2(d), which provides that a lawyer may not
actively participate in a client’s criminal or fraudulent activity. This rule applies
to all lawyers, not just those representing fiduciaries. Lawyers are also prohibited
from actively concealing client breaches of fiduciary duty, or actively assisting in
such concealment, by Model Rules 4.1(a) (a lawyer shall not lie to third parties)
and 3.3(a)(1) and (2)(a lawyer shall not lie to or conceal information from a
4

Ethics Opinion 91-2 also concluded that the attorney for the personal representative is
not per se precluded from representing the personal representative as an individual against other
beneficiaries of the estate. This opinion does not address this conclusion.
5

The lawyer's exercise of discretion requires consideration of such factors as the nature
of the lawyer's relationship with the client and with those who might be injured by the client, the
lawyer's own involvement in the transaction and factors that may extenuate the conduct in
question. See ARPC 1.6 Comment. Where practical, the lawyer should seek to persuade the
client to take suitable action. See id. If the attorney does choose to reveal the client’s activities,
the disclosure should be limited to the minimum the attorney reasonably believes necessary. See
id.

tribunal).6 If a lawyer knows that a breach of fiduciary duty has occurred, and
that an accounting is misleading in that it hides wrongdoing committed by the
fiduciary, the lawyer is expressly prohibited by Model Rule 3.3(a) from
presenting the accounting to the court. Further, the lawyer is prohibited by Model
Rule 4.1(a) from representing to the beneficiaries that a false accounting is
accurate. These rules apply to a lawyer with a fiduciary client to the same extent
as, but no farther than, they apply in any other lawyer/tribunal/third party
scenario.
ABA Formal Opinion 94-380 at 3 n.6.
ARPC 1.2(d), 3.3(a) (1) and (2), and 4.1(a) are identical to the Model Rules. If a client
persists in a course of fraudulent or criminal conduct despite the attorney’s advice, and seeks to
hide the fraudulent or criminal conduct from the beneficiaries and the court, the attorney may be
forced to withdraw as counsel to avoid having the attorney’s services involved in the wrongful
conduct. ARPC 1.16 (a)(1) requires withdrawal when representation will result in violation of
the Rules of Professional Conduct or other law. ARPC 1.16(b)(1) permits withdrawal from
representation of a client if withdrawal can be accomplished without material adverse effect on
the interests of the client, or if “(1) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or fraudulent.”
ARPC 1.6(b)(1) permits, but does not require, broader disclosure of a client’s criminal or
fraudulent conduct than provided for in the Model Rules and in Alaska’s prior code of
professional responsibility. Because of this change in Alaska’s ethical rules, it is necessary to
modify the portion of Ethics Opinion 91-2 that was based on the Model Rules and the prior code.
In pertinent part, Ethics Opinion 91-2 stated:
The attorney for the personal representative has a duty to advise the client of
actions deemed necessary for the proper administration of the estate and to refrain
from counseling or assisting the personal representative in conduct the attorney
deems inconsistent with the best interests of the estate. Opinion 512, New York
State Bar Assn. (July 11, 1979). The attorney does not, however, have a duty to
advise heirs or creditors of the estate, and is prohibited from informing
beneficiaries or the court of facts that would be adverse to the personal
representative, or from taking any position hostile to the personal
representative’s interests.
Ethics Opinion 91-2 at 2 (emphasis added).
Because this prohibition on informing the beneficiaries and the court of the personal
representative’s criminal or fraudulent conduct is inconsistent with ARPC 1.6(b)(1), Ethics
Opinion 91-2 is modified to remove the prohibition on the attorney’s informing the beneficiaries
6

ARPC 3.3(b) provides: “The duties stated in paragraph (a) continue to the conclusion of
the proceeding, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.”

or the court of facts adverse to the personal representative. An attorney for a personal
representative is permitted to disclose the client’s criminal or fraudulent conduct in accordance
with ARPC 1.6(b)(1).
c. Impact of Brandon
The Alaska Supreme Court in the Matter of Estate of Brandon, 902 P.2d 1299 (Alaska
1995), held that:
When an attorney undertakes to perform legal services for a client who is
acting in a fiduciary capacity, the attorney has a duty not to affect adversely the
interests of the intended beneficiary. Fickett v. Superior Court of Pima County,
[558 P.2d 998, 990 (Ariz. App. 1977]; see also Jenkins v. Wheeler, [316 S.E.2d
354, 357 (NC 1984)](“When a client merely represents a class of beneficiaries,
the attorney should consider the beneficiaries’ interests, without undue concern
for the interests of the legal representative.”)
Brandon, 902 P.2d at 1316.
In Brandon the issue before the Court was whether the attorneys for the co-personal
representatives who were the decedent’s non-dependent parents had an impermissible conflict of
interest with the actual beneficiary of the estate, the decedent’s only child. The parents’
attorneys argued that Ethics Opinion 91-2 permitted them to represent the parents both as
personal representatives and as individual claimants adverse to the minor beneficiary. The
Brandon court found that Ethics Opinion 91-2 would not excuse the attorneys’ conduct in the
case and remanded for further findings concerning the attorneys’ possible conflicts of interest.
Id.7
The Committee concludes that the Brandon duty “not to affect adversely the interests of
the intended beneficiary” does not change the permissive disclosure standard of ARPC 1.6(b)(1).
The Brandon duty may encourage more attorneys to disclose a personal representative’s
fraudulent or criminal conduct, but it does not mandate disclosure as a matter of professional
ethics.8
Conclusion
The personal representative’s attorney may not actively participate in or actively conceal
the personal representative’s fraudulent or criminal conduct. The adoption of the Alaska Rules of
7

The Brandon court discussed the case under Alaska’s code of professional
responsibility in effect at the time of the conduct in question. There are no references to the
current ARPC.
8

The question of whether or not an attorney’s decision not to make the permissive
disclosure of a personal representative’s fraudulent or criminal acts constitutes malpractice is
beyond the scope of this opinion.

Professional Conduct in 1993 identified circumstances under which disclosure of a personal
representative’s criminal or fraudulent conduct is permitted, but not required, and Ethics Opinion
91-2 is modified to reflect that change.
The personal representative’s attorney has no ethical obligation to disclose the client’s
criminal or fraudulent conduct to the court or to the beneficiaries. In deciding whether or not to
make a permissive disclosure of such conduct pursuant to ARPC 1.6(b)(1), the attorney should
be alert to the Alaska Supreme Court’s decision in the Matter of Estate of Brandon, 902 P.2d
1299 (Alaska 1995).

Approved by the Alaska Bar Association Ethics Committee on March 6, 2003.
Adopted by the Board of Governors on March 14, 2003.