When a lawyer is hired to handle an estate, is the client the estate or the personal representative or conservator?

Plain-English summary

Opinion 259 (adopted October 18, 1995) arose from a representation involving the estate of an incapacitated person. The court appointed three co-conservators (X, Y, and Z) for A's estate; X was also one of two trustees of a trust whose beneficiaries included the estate. The inquirer first audited the trust for the trustees, then became counsel to the estate, paid by the conservators from estate funds. Three years later, Y and Z asked her to examine whether the trustees' fees, including X's, were excessive, and she represented Y and Z in removing X as a conservator. After the court removed X, the court directed the inquirer to ask whether her continued representation was an impermissible conflict given her earlier position adverse to X.

On the narrow question, the committee concluded that, after X's removal, the inquirer's continued representation of the estate and the remaining conservators did not create a conflict under Rule 1.7 or Rule 1.9, because X was no longer a conservator and the inquirer was no longer in any matter adverse to him. But the committee then addressed the more significant question of whether a conflict existed when she took a position adverse to X while he was still a co-conservator, which turned on the identity of the client. The inquirer had reasoned, by analogy to Rule 1.13 (organization as client), that her client was the estate, so she could act against a conservator to benefit the estate.

The committee concluded that the inquirer's reasoning was flawed because, under District of Columbia substantive law, the client of a lawyer representing an estate is the fiduciary, not the estate. It relied on the D.C. Court of Appeals decisions in Poe v. Noble (counsel for the estate is an employee of the personal representative) and Hopkins v. Akins (the attorney's client is the personal representative, not the estate or its beneficiaries), noting this is the majority view nationally and citing the ACTEC Commentaries. As a question of substantive law, the committee said it had no authority to alter that result. It saw no reason the D.C. Court of Appeals would treat a ward's estate differently from a decedent's estate.

Because the inquirer represented the conservators rather than the estate, the committee concluded she should not have assisted Y and Z against X, a current client, without his consent: Rule 1.7(b)(1) conditionally bars representing a client whose position in a matter is adverse to a position of another client in the same matter, and X did not consent. The committee found no basis in District of Columbia law for a lawyer to take action adverse to a fiduciary client even when the lawyer believes the fiduciary is harming the estate, citing ABA Formal Opinion 94-380 for the point that the conduct rules apply in estates work as they do elsewhere.

Currency note

This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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: When a lawyer handles an estate, who is the client?

A: The fiduciary. The committee concluded that under District of Columbia law the client is the personal representative or conservator, not the estate itself, relying on Poe v. Noble and Hopkins v. Akins.

Q: Can the estate's lawyer take action against a conservator the lawyer thinks is harming the estate?

A: Not without consent. The committee concluded the conservator was a current client under Rule 1.7(b)(1), so the lawyer should have declined to help the other conservators act against him absent his consent.

Q: Was the continued representation a conflict after the conservator was removed?

A: No. The committee concluded that once X was removed and the remaining parties were no longer adverse to him, the continued representation presented no conflict under Rule 1.7 or Rule 1.9.

Q: Did the lawyer's belief that the estate was her client excuse the conduct?

A: No. The committee concluded that the identity of the client is a question of substantive law it cannot alter, and that settled D.C. law makes the fiduciary, not the estate, the client.

Background and rules framework

The opinion interpreted D.C. Rule 1.7 (conflicts among current clients, including Rule 1.7(b)(1)) and Rule 1.9 (duties to former clients), and addressed the inquirer's reliance on Rule 1.13 (organization as client) and Rule 1.6 (confidences and secrets, including whether a lawyer may disclose a fiduciary's breach). It resolved the controlling question, the identity of the client, by reference to District of Columbia substantive law rather than the conduct rules alone.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(b)(1) / Model Rule 1.7 (adverse positions among current clients)
• D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)
• D.C. RPC 1.13 / Model Rule 1.13 (organization as client)
• D.C. RPC 1.6 / Model Rule 1.6 (confidences and secrets)

Cases:

• Poe v. Noble, 525 A.2d 190 (D.C. 1987), counsel for an estate is an employee of the personal representative
• Hopkins v. Akins, 637 A.2d 424 (D.C. 1993), the client is the personal representative, not the estate or beneficiaries
• Steinway v. Bolden, 460 N.W.2d 306 (Mich. Ct. App. 1990), analyzing an estate as a client under Rule 1.13

Other opinions cited:

• ABA Formal Op. 94-380 (1994): the conduct rules apply to counseling a fiduciary as in any other representation
• D.C. Bar Op. 216 (1991): a lawyer represents the entity, not its constituents, even when they conflict

See also

• DC Ethics Op. 328: Personal Representation of Organization Constituents
• DC Ethics Op. 269: Clarifying the Corporate Lawyer's Role in an Internal Investigation
• ABA Formal Op. 514: Advising an Organization on Constituent Legal Risk

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-259