What should a lawyer holding estate funds do if the administratrix client may divert them, and can the firm also be sureties on her bond?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A firm had represented a man in a personal-injury claim, which settled. He died, his wife was appointed administratrix, and the firm handled the estate while two of its lawyers signed as personal sureties on her bond. When the settlement check issued to the wife as administratrix, she demanded the funds, and the handling lawyer believed she would not pay the estate's lawful debts but would spend the money on current expenses for herself and her children. He asked whether he had to turn over the check or take steps to ensure the debts were paid, and whether the sureties could insist on payment of the debts.
The committee applied DR 7-102(A)(7), which bars a lawyer from counseling or assisting a client in conduct the lawyer knows to be illegal or fraudulent. If the lawyer had reason to believe the administratrix would divert the funds from those entitled to them in violation of law or as a fraud on them or the court, he could not help her do so. He should first advise her of any lawful basis for seeking court permission to use estate funds for her purpose; if none was available and she persisted, he should seek the Probate Court's instructions on disposition of the funds. In doing so he should avoid revealing client confidences without consent if possible, though under DR 4-101(C)(3) it might become necessary to reveal some to prevent the client from committing a crime.
On the firm-as-sureties question, the committee said the underlying obligations of the firm and sureties were matters of substantive law it could not address, but it identified an ethics problem: members of a firm simultaneously representing an estate and acting as sureties on the administratrix's bond face a grave risk that professional judgment will be affected. Under DR 5-101(A), a lawyer may not accept employment where his own financial interests may affect his professional judgment, absent disclosure and consent, and the committee had recognized extreme cases where consent is not sufficient (Opinion 86-1). It concluded the potential conflict between the administratrix's and the sureties' interests barred a firm from serving in both capacities here, even with consent, expressly reserving the different situation of a surety who is a relative of the decedent or beneficiaries.
Currency note
This opinion was issued in 1994, before Massachusetts's adoption of the 2015 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: Must the lawyer hand over estate funds the administratrix may misuse?
A: No. The committee concluded that if the lawyer reasonably believes she will divert the funds unlawfully, he may not assist her under DR 7-102(A)(7) and should seek the Probate Court's instructions before disbursing.
Q: Can the lawyer reveal the client's confidences to the court?
A: Only as needed. The committee said the lawyer should avoid revealing confidences without consent if possible, but DR 4-101(C)(3) allows revealing some confidential information to prevent the client from committing a crime.
Q: Can the firm both represent the administratrix and be sureties on her bond?
A: No. The committee concluded that the potential conflict between the administratrix's interests and the sureties' interests barred one firm from serving in both roles, even with the client's consent.
Background and rules framework
The opinion applied the predecessor disciplinary rules DR 7-102(A)(7) (not counseling or assisting illegal or fraudulent conduct), corresponding to Model Rule 1.2(d); DR 4-101(C)(3) (revealing confidences to prevent a crime), corresponding to Model Rule 1.6; and DR 5-101(A) (personal-interest conflicts), corresponding to Model Rule 1.7. It cross-referenced Opinion 86-1.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.2(d) / DR 7-102(A)(7) (not assisting illegal or fraudulent conduct)
- Model Rule 1.6 / DR 4-101(C)(3) (revealing confidences to prevent a crime)
- Model Rule 1.7 / DR 5-101(A) (personal-interest conflict; limits of consent)
Other opinions cited:
- MBA Opinion 86-1 (extreme conflicts where consent is not sufficient)
See also
- MA Bar Ethics Op. 99-5: Joint clients and a theft from the estate
- MA Bar Ethics Op. 97-3: A will drafter defending the estate against that will
Source
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