Can a lawyer act as surety on the bond of an estate administrator the lawyer's firm represents, and may a judge appoint a lawyer who contributed to the judge's campaign?

Plain-English summary

A partner of an insurance-defense firm was appointed successor administrator of a decedent's estate over the heirs' objection, then hired his own firm to represent him as administrator. Two of his partners signed the surety bond on his appointment. The same judge presided over both the probate matter and the related wrongful-death suit; the appointed partner had contributed to that judge's campaign committee, and another firm lawyer had served on the campaign committee. The inquiry asked whether the partners could act as surety on the administrator's bond and whether the judge could properly appoint a lawyer in that situation.

On the surety question, the committee reaffirmed ISBA Opinion 802, which held it professionally improper for an attorney representing an estate's personal representative to act as surety on the representative's bond. Relying on the predecessors to Rules 1.7 and 1.8, the committee found the combination of conflict potential, a guarantee of financial assistance, and the business nature of the relationship must be avoided, and that the attorney for the personal representative is precluded from acting as surety on the client's bond.

On the appointment question, the committee noted Rule 3.5(h) permits a lawyer to contribute to and volunteer for a judge's campaign, and that ISBA Opinion 866 held a contributing lawyer is not barred from appearing before that judge. But Rule 6.2(a) lets a lawyer decline a tribunal's appointment for good cause, including where representation is likely to violate the Rules or other law, and Rule 8.4(a)(5) bars conduct prejudicial to the administration of justice. The committee concluded the appointment was not necessarily improper on the contribution facts alone, but because the appointed administrator faced the conflict described above, the appointment was improper and should have been declined.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors withdrew Digest 1 and affirmed Digests 2 and 3 in May 2010, pointing to the 2010 Rules (Rules 1.6(a), 1.7, 8.4(f), 6.2(a), and 8.4) as generally consistent, while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer represent an estate's administrator and also sign as surety on the administrator's bond?

A: No. The opinion reaffirmed ISBA Opinion 802 that the attorney for a personal representative is precluded from acting as surety on the client's bond, given the conflict potential, the financial guarantee, and the business nature of the relationship under Rules 1.7 and 1.8.

Q: Does contributing to a judge's campaign bar the lawyer from being appointed by that judge?

A: Not by itself. The opinion concluded, citing Rule 3.5(h) and ISBA Opinion 866, that contributions and campaign service do not necessarily make an appointment improper.

Q: When should the lawyer decline a court appointment?

A: The opinion concluded the lawyer should decline under Rule 6.2(a) where the appointment is likely to result in a rule violation or other law, or where accepting would be prejudicial to the administration of justice under Rule 8.4; on these facts the conflict made the appointment improper.

Background and rules framework

The opinion applied Rules 1.7 and 1.8 (conflicts and financial dealings) to the surety arrangement, and Rule 3.5(h) (campaign contributions), Rule 6.2(a) (declining tribunal appointments for good cause), and Rule 8.4 (conduct prejudicial to the administration of justice) to the appointment by a judge the lawyer had supported (Model Rules 1.6, 1.7, 1.8, 6.2, 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest) / Illinois Rule 1.7
• Model Rule 1.8 (specific conflicts; financial dealings) / Illinois Rule 1.8
• Model Rule 6.2 (declining appointment by a tribunal) / Illinois Rule 6.2(a)
• Model Rule 8.4 (misconduct; prejudice to the administration of justice) / Illinois Rule 8.4
• Illinois Rule 3.5(h) (campaign contributions to and volunteer service for judges)

Cases:

• In re Estate of Nuyen, 111 Ill. App. 3d 216, 443 N.E.2d 1099 (2d Dist. 1982)
• In re Estate of Phillips, 3 Ill. App. 3d 1085, 280 N.E.2d 43 (2d Dist. 1972)

Other opinions cited:

• ISBA Opinion 802: attorney for a personal representative may not act as surety on the bond.
• ISBA Opinion 866: a lawyer who contributed to a judge's campaign is not barred from appearing before that judge.

See also

• ISBA Ethics Op. 90-26: Fee Entitlement After a Conflict Withdrawal
• ISBA Ethics Op. 94-03: Social Hospitality to Government Officials

Source

• Landing page: https://www.isba.org/ethics/opinions/9025