Can a lawyer charge an attorney fee for an estate when a partner or relative is the administrator, and can a firm have its secretary serve as personal representative?

Plain-English summary

The committee took up four estate-administration arrangements involving lawyers who were related, who were partners, or whose firm employed the proposed personal representative. It held that none directly violated the Canons of Professional Ethics, while cautioning that each came close to the line where the spirit of the Canons could be abused, which made a categorical answer difficult.

On Question 1 (a father-lawyer petitioning to have his son-lawyer named administrator, with the father as the administrator's attorney), the committee assumed the heir who employed the father was fully informed of the father-son relationship and chose the father, the son, or both on his own volition. On those facts, Canon 27 (solicitation) was not involved, and it was not improper for the father to represent the administrator and accept whatever fee the court allowed. On Question 2 (partners, where the son was administrator and the father the estate's attorney), the committee reasoned that because the court must approve all fees charged against an estate and any charge should rest on the amount and nature of services rendered, no Canon was violated; it cautioned that two members of a firm should not collect double for their services, and that a fee for settling an estate should be no greater or less because more than one individual performed the work, never exceeding the value of services rendered.

On Question 3 (one partner serving as administrator, executor, or trustee while the other represents him, with the partners sharing both commissions and attorney fees), the committee reasoned by deduction: if the partnership may ethically collect fees and commissions, it may ethically divide them, so Canon 34 was not violated; that Canon is violated only where the transaction involves a lawyer and a lay representative, or lawyers who are not members of the same firm. On Question 4 (a firm having its secretary appointed personal representative, with the firm as attorney), the committee saw the closest approach to Canon 27, because it could appear the firm was soliciting business through the secretary, and to Canon 12, because the estate might be charged more than necessary; but it found the opportunity, not the fact, of impropriety present. Because Canon 34 prohibits the attorney from sharing in any fee the court allows the personal representative, the committee held the arrangement was not unethical and could benefit the estate. It answered all four questions in the affirmative.

Currency note

This opinion was issued in 1962 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific point mentioned here.

Common questions

Q: Can a lawyer charge an attorney fee when his law partner is the estate's administrator?

A: Under this opinion, yes. The committee held that because the court must approve all estate fees and fees must rest on the value of services, the arrangement did not violate the Canons, provided the firm did not collect double for the same work.

Q: Can a father-lawyer represent his son when the son is appointed administrator?

A: Yes, on the assumption the heir was fully informed of the father-son relationship and chose the lawyers on his own volition; on those facts Canon 27 (solicitation) was not involved.

Q: Can partners split both the personal representative's commission and the attorney fee?

A: The committee said yes, reasoning that if the partnership may ethically earn the fees and commissions it may ethically divide them; Canon 34 is violated only where a lawyer divides with a lay representative or with lawyers outside the firm.

Q: Can a firm have its secretary serve as personal representative while the firm acts as attorney?

A: The committee found this the closest to improper (touching Canon 27 and Canon 12) but held it not unethical, because Canon 34 bars the attorney from sharing in the personal representative's commission, and the arrangement could benefit the estate.

Background and rules framework

The opinion applied Canon 12 (reasonableness of fees), Canon 27 (solicitation of business), and Canon 34 (division of fees, particularly the bar on dividing fees with a lay person or with lawyers outside the firm). The modern analogs are Model Rule 1.5 (fees and the limits on fee division), with Kentucky's counterpart at SCR 3.130(1.5), and Model Rule 5.4 (a lawyer's sharing of legal fees with a nonlawyer), with Kentucky's counterpart at SCR 3.130(5.4).

Citations and references

Rules of Professional Conduct:

• Canons 12, 27, 34 (reasonable fees, solicitation, division of fees); modern analogs Model Rules 1.5 and 5.4

See also

• KBA Ethics Op. E-48: Associate as a Witness in a Case
• KBA Ethics Op. E-37: County Attorney Partner Conflicts

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-014.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-14
Issued: November 1962

Question 1:

A father and his son, both licensed attorneys at law, are associated in their
practice of law in the same office. The father files petition on behalf of an
heir at law to have the son appointed administrator of an estate, with the
father as attorney for the administrator. Is it ethical for the father to charge
a fee as attorney in such case?

Answer 1:

Yes.

Question 2:

A father and his son, both licensed attorneys at law, are partners in the
practice of law in the same office. The son is appointed administrator of the
estate of a decedent. The father is named attorney for the estate. Is it ethical
for any fee at all to be charged as attorney in such case?

Answer 2:

Yes.

Question 3:

Is it ethical for one partner in a law firm to be named as administrator,
executor or trustee and the other partner represent him as attorney and
receive a fee as attorney, with both partners sharing the commissions of the
administrator, executor or trustee, and the fees as attorney?

Answer 3:

Yes.

Question 4:

A law firm has its secretary appointed as personal representative of a
decedent’s estate, and the law firm represents the personal representative as
attorney. Is this an ethical arrangement?

Answer 4:

Yes.

References:

Canon 12, 27, 34
OPINION

None of the four situations directly violates the Canons of Professional Ethics;
however, because each so closely approaches the line when the “spirit” of the canons are
abused a categorical answer is difficult.

In Question 1, it is presupposed that an heir has employed the father; that the heir
was fully informed about the father-son relationship and upon his own volition employed
the father, the son or both. Based upon such assumptions Canon 27 is not involved and it is
not improper for the father to represent the administrator, and accept whatever fee may be
allowed by the court.
Under Question 2 it is assumed the appointment was made by agreement or with
notice to all heirs, and no representation was made that an attorney would not be employed.
Since the Court must approve all fees charged against an estate and since any charge, by a
personal representative or attorney, should be based upon the amount and nature of services
rendered, a violation of the canon does not occur. The question, however, does present a
situation wherein it is assumed that it may be possible for two members of a firm to collect
double for their services. Fees for the settlement of an estate should not be any greater nor
less, because the service has been performed by one or more individuals. A lawyer’s fee
should never exceed the value of the services rendered.
The answer to the question presented in Question 3 is arrived at by deduction. If the
partnership may ethically collect fees and commissions it may ethically divide them. Canon
34 is not violated. A violation of this Canon occurs only where the transaction involves a
lawyer and lay representative or lawyers not members of the same firm.
The arrangement envisioned by Question 4 approaches an involvement with
Canon 27, in that it is made to appear that the firm or attorney may be soliciting business
for or through the secretary. It naturally follows that the estate may be charged more than
necessary for its administration and involve a violation of Canon 12. It further insinuates
an “arrangement” or “practice” may be engaged in that violates the spirit of one or more
of the canons. The opportunity is present; the facts are not. Since Canon 34 prohibits the
attorney from sharing in any fee the court may allow the personal representative the
“arrangement” is not unethical. It could easily benefit the estate.
Accordingly, it is the opinion of the Committee that all questions must be answered
in the affirmative.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.