In a probate matter, does the lawyer represent the estate or the personal representative, and can the lawyer take the PR's side in a dispute with the heirs?

Plain-English summary

The Committee was asked whether an attorney for the personal representative of a probate estate should advise the personal representative to seek independent counsel when there is a conflict between the personal representative and the heirs over settlement of the estate. The opinion began by identifying the client: although there is a tendency to treat the estate as an entity acting through the personal representative (like a corporation), for probate purposes an estate is a collection of assets rather than an organization. Reading the probate code (AS 13.16.410(21)), which speaks of the personal representative employing attorneys to assist in administrative duties, the opinion concluded the attorney represents the personal representative, not the estate.

It followed that the attorney is not precluded from representing the personal representative in disputes with heirs, and may even represent the personal representative in an individual capacity (for example as an heir or creditor), provided the attorney has gained no relevant confidential information from the other heirs while acting for the personal representative. The attorney owes the personal representative the same loyalty as any client, has no duty to advise heirs or creditors, and is prohibited from disclosing facts adverse to the personal representative or taking a position hostile to the personal representative's interests. The opinion drew extensively on sister-state opinions reaching the same conclusions.

The opinion identified two limits. The attorney must refrain from counseling or assisting the personal representative in conduct inconsistent with the estate's best interests, and where the personal representative refuses to act consistently with duty (for example by omitting an asset), the lawyer's recourse is to withdraw rather than disclose to beneficiaries. But where information clearly establishes that the client has perpetrated a fraud on a person or tribunal, DR 7-102(B)(1) requires the attorney to urge the client to remedy it and, failing that, to reveal the fraud to the court. The opinion also noted that, under AS 13.16.440, a court may deny reimbursement of fees incurred to protect the personal representative's individual interests rather than to administer the estate.

Currency note

This opinion was later modified by Alaska Ethics Opinion 2003-2; consult that opinion before relying on this one. This opinion was also issued in 1991, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). 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: In a probate case, is the estate or the personal representative the lawyer's client?

A: The opinion concluded the lawyer represents the personal representative, not the estate, because for probate purposes the estate is a collection of assets rather than an entity that retains counsel.

Q: Could the lawyer take the personal representative's side against the heirs?

A: Yes, with a limit. The opinion concluded the lawyer is not barred from representing the personal representative in disputes with heirs, unless the lawyer obtained relevant confidential information from the heirs while acting for the personal representative.

Q: What if the personal representative wanted to do something against the estate's interests?

A: The opinion concluded the lawyer must not assist conduct inconsistent with the estate's best interests, and where the personal representative refuses to act properly, the lawyer's recourse is generally to withdraw rather than disclose to beneficiaries.

Q: Did the lawyer ever have to disclose the personal representative's wrongdoing?

A: Yes, in the case of fraud. The opinion concluded that where information clearly establishes the client perpetrated a fraud, DR 7-102(B)(1) requires urging the client to remedy it and, failing that, revealing it to the court.

Background and rules framework

The opinion was decided under the former Alaska Code of Professional Responsibility, the analog to today's conflict (Model Rule 1.7), confidentiality (Model Rule 1.6), and organization-as-client (Model Rule 1.13) rules. It applied DR 4-101 (confidences) and DR 7-102(B)(1) (the duty to act on a client's fraud), read against the Alaska probate code (AS 13.16.350, 13.16.410, 13.16.440), and anticipated the then-pending Model Rules 3.3(a)(2) and 4.1(b).

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 4-101 (preservation of confidences and secrets) (cf. Model Rule 1.6)
• DR 7-102(B)(1) (acting on a client's fraud) (cf. Model Rules 3.3(a)(2), 4.1(b))

Statutes:

• AS 13.16.350; AS 13.16.410(21); AS 13.16.440 (duties of the personal representative; employment and compensation of attorneys)

Other opinions cited:

• New York State Bar Op. 512; Oregon State Bar Ops. 100, 314; Los Angeles County Bar Op. 237

See also

• Alaska Ethics Op. 2003-2: Personal Representative Fraud Disclosure
• Alaska Ethics Op. 91-5: Withdrawing From Both Clients
• Alaska Ethics Op. 2012-3: Closely-Held Organization Owner Conflicts

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/91-2.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 91-2
Responsibilities of Attorney Representing
Personal Representative of Estate When a
Conflict Exists Between the Personal
Representative and the Heirs of the Estate
The Committee has been asked whether an attorney representing the
personal representative of a probate estate should advise the personal
representative to seek independent counsel when there is a "conflict" between
the personal representative and the heirs regarding settlement of the estate.
It is the opinion of the Committee that an attorney representing the
personal representative of an estate is not prohibited from representing the
personal representative in disputes with heirs. The attorney may not, however,
represent the personal representative in such disputes if the attorney has
obtained relevant confidential information from the heirs while acting for the
personal representative; nor may the attorney assist or counsel the personal
representative in conduct inconsistent with the best interests of the estate.
An analysis of the issue presented must begin by first considering the
identity of the "client" being represented when an attorney is providing services
related to the probate of an estate. There appears to be a tendency to consider
the estate as an entity that is acting through the personal representative, and
that the estate is therefore the client of the attorney, much the same as a
corporation or other organizational client. However, while the estate is an
entity for some limited purposes, such as taxation, it is for probate purposes a
collection of assets rather than an organization, and is not an entity involved in
the probate proceedings.
AS 13.16.410(21) provides, in
pertinent part, that:
[A] personal representative, acting reasonably for the benefit
of the interested persons, may properly
. . .
(21) employ persons, including
attorneys . . . even if they are associated with the personal
representative, to advise or assist the personal representative
in the performance of administrative duties . . . .

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There is no reference in that section or elsewhere in the probate code to the
estate retaining the services of an attorney, nor to an attorney representing the
estate. It is clear, therefore, that the attorney handling a probate proceeding is
representing the personal representative and not the estate.
Opinions from other bar associations almost uniformly reach the same
conclusion, and further advise that an attorney representing the personal
representative in the probate of an estate is not precluded from also
representing the personal representative in the representative's individual or
personal capacity. For example, the Mississippi Bar Association found that
counsel for an executor could represent the executor in a dispute with
beneficiaries who took exception to the final accounting of the executor
because the attorney represents the executor and not the estate. Opinion 46,
25 Mississippi Lawyer 9 (December 1978). In its Opinion No. 237, the Los
Angeles County Bar Assn. determined an attorney for an administratrix of an
estate might also represent the administratrix in her individual capacity as an
heir in a contest with other heirs if the attorney has gained no relevant
information from the other heirs while acting for the administratrix. The
Alabama Bar expressed the opinion that an attorney can represent a client as
administratrix of an estate and as creditor in her claim against the assets of
the estate. Alabama Bar Assn., Opinion 83-167 (November 16, 1983).
A personal representative in Alaska is under a duty to settle and distribute
the estate of the decedent in accordance with the probated will and applicable
statutes as expeditiously and efficiently as is consistent with the best interests
of the estate. The authority conferred by the statutes and court orders must be
used by the personal representative for the best interests of successors to the
estate. AS 13.16.350. 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.
The opinions discussing the prohibition against disclosure of information
adverse 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. The Bar
Association of Greater Cleveland, for example, advised that an attorney for an
executor who becomes aware, through information provided by the executor, of
an asset that should be included in the estate, may not disclose that
information to the beneficiaries or bring a declaratory judgment action against
the executor on behalf of the child beneficiaries. If the executor refuses to
include the asset in the estate, the lawyer was advised he must withdraw.
Opinion 125 (September 2, 1976). Oregon State Bar Opinion 314 (February
1976) similarly holds that an attorney for the personal representative has no
duty to disclose to beneficiaries that property they propose to select from the
estate is worthless, but if the representative has the duty to make such a
disclosure to do so and refuses, counsel should withdraw.
The Michigan Bar similarly held that an attorney who believed a corepresentative he was representing was guilty of misconduct in managing the
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estate could not reveal the alleged misdeeds to the other devisees of the estate,
but could only withdraw. Opinion 47 (May 10, 1984). However, if information
received by the attorney clearly establishes his client has perpetuated a fraud
upon a person or a tribunal, the attorney must promptly advise the client to
remedy the results of that fraud, and if the client refuses or cannot make the
correction, the attorney shall reveal the fraud to the court and may reveal the
fraud to the affected person. DR 7-102(B)(1). (See Rules 3.3(a)(2) and 4.1(b) of
the Model Rules of Professional Conduct presently under consideration by the
Alaska Supreme Court.)
An attorney for an administrator is prohibited from petitioning for the
removal of the administrator who has become incompetent due to drug
addiction, but was advised to notify the court and the administrator that he
was withdrawing because the administrator's conduct rendered him unable to
fulfill his obligations to the court in the orderly and timely closure of estates in
probate. Oregon State Bar Association, Opinion 100 (October 1961). An
attorney representing an executor in Virginia is not obligated to advise an
estate beneficiary, whose interests are potentially in conflict with those of the
executor, to seek independent counsel, but should advise the client that the
conflict exists and that the executor should recommend that the other
beneficiary retain independent counsel. Informal Opinion 239, Virginia Bar
Association (no date).
The request to this Committee for this opinion expressed concern with the
apparent unfairness if the estate paid the fees of the attorney for the personal
representative in the conflict situation, while the other beneficiaries were
required to pay their own fees. That result does not necessarily follow. Under
AS 13.16.440, the court is authorized to determine the propriety of the
employment of the attorney and the reasonableness of the compensation. To
the extent attorney fees are incurred to protect the interests of the personal
representative as a beneficiary or creditor of the estate, and not in furtherance
of its administration, the personal representative is not entitled to
reimbursement. Matter of Estate of Stephens, 117 Ariz. 579, 574 P.2d 67, 73
(1978); Estate of Riemcke v. Schreiner, 80 Wash. 2d 722, 497 P.2d 1319, 1327
(1972).
Approved by the Alaska Bar Association Ethics Committee on November 14,
1990.
Adopted by the Board of Governors on January 18, 1991.

118MANUL

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