Can the attorney for an executor represent the executor in a dispute brought by estate beneficiaries over the final accounting?

Plain-English summary

The opinion (rendered November 30, 1978, and amended April 17, 2013) addressed whether the attorney for the executor of an estate may represent the executor in a proceeding brought by estate beneficiaries excepting to the executor's final accounting. The Committee framed the question around who the attorney actually represents: the executor, or the "estate."

If the attorney's duty is to advise and direct the executor in performing his duties, including preparing necessary pleadings and entering proper decrees, then the attorney represents the executor personally and has no conflict in representing the executor in a proceeding brought by beneficiaries against the executor. If, on the other hand, the attorney as a matter of law represents the "estate," then MRPC 1.7 applies, and the lawyer may serve as the executor's attorney only if the executor's interests are not adverse to those of the estate.

Accepting the apparent representation that the attorney represents the executor, the Committee concluded there is no impropriety in the attorney for the executor representing the executor in proceedings brought by beneficiaries against the executor.

In practice

Under this opinion, an attorney engaged to advise and direct an executor represents the executor personally and may, absent other factors, defend the executor against beneficiaries who challenge his administration. The analysis the Committee identified turns on whether the lawyer instead represents the estate as such; if so, MRPC 1.7 limits the representation to situations where the executor's interests are not adverse to the estate's. The headnote also flags the final accounting as the point at which the analysis differs.

Common questions

Q: Can the executor's attorney defend the executor against beneficiaries?

A: Per the opinion, yes, absent other factors, where the attorney's role is to advise and direct the executor; on that view the attorney represents the executor personally and has no conflict.

Q: When does MRPC 1.7 come into play?

A: The opinion states that if the attorney as a matter of law represents the "estate," then MRPC 1.7 applies and the lawyer may serve the executor only if the executor's interests are not adverse to those of the estate.

Q: Does the attorney represent the executor or the estate?

A: The opinion treats that as the controlling question and proceeds on the apparent representation that the attorney represents the executor, concluding there is no impropriety on that basis.

Background and rules framework

The opinion interprets MRPC 1.7 (conflict of interest), which corresponds to Model Rule 1.7. The Committee applied it conditionally: Rule 1.7 governs only if the lawyer represents the "estate" as an entity rather than the executor personally.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7 (conflict of interest) (cf. Model Rule 1.7)

See also

• MS Bar Ethics Op. 26: City Attorney Conflict
• MS Bar Ethics Op. 28: Co-Defendant Conflict
• ABA Formal Op. 91-361: Representing a Partnership

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/46/
• Original PDF: https://www.msbar.org/media/1080/et_op_46-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 46

OF THE MISSISSIPPI BAR

RENDERED November 30, 1978

AMENDED April 17, 2013

CONFLICT OF INTEREST - The attorney for the executor of an estate, absent other factors, does not have a conflict of interest precluding him from representing the executor in an action by beneficiaries of the estate against the executor excepting in the final accounting.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion of the ethical propriety of an attorney for the executor of an estate representing the executor in a proceeding brought by beneficiaries of the estate excepting to the final accounting of the executor. The question presented is whether or not the acts of the attorney in advising and representing or other circumstance between the attorney and the beneficiaries of the estate which would give rise to a conflict of interest on the part of the attorney in an action between the beneficiaries and the executor.

Thus, the question arises: Does the attorney represent the executor or does the attorney represent the "estate"? In the event the attorney's duty is to advise and direct the executor in the performance of his duties including the preparation of necessary pleadings and the entry of proper decrees, then one can conclude that the attorney represents the executor personally and, therefore, has no conflict of interest in representing the executor in a proceeding brought by beneficiaries of the estate.

However, in the event it is determined that the attorney as a matter of law represents the "estate", it would then appear that Rule 1.7 of Mississippi Rules of Professional Conduct ("MRPC") is applicable. Thus, the lawyer may serve as attorney for the executor only if the executor's interests are not adverse to those of the estate.

Accepting the apparent representation, that the attorney represents the executor, it is the opinion of the Ethics Committee that there is no impropriety in the attorney for the executor of an estate representing the executor in proceedings brought by beneficiaries of the estate against the executor.