Can a North Carolina lawyer hired by some co-executors move to remove another co-executor the lawyer also represents?

Plain-English summary

A mother had loaned $75,000 to one son and later signed a statement indicating the loan was settled. She died testate, dividing the bulk of her estate equally among her five children and naming three sons, A, B, and C, as co-executors. All three received letters testamentary. Sons B and C hired a lawyer to help administer the estate and believed the $75,000 should be collected from Son A as a debt or treated as an advance. The lawyer filed a motion to revoke Son A's letters testamentary and wrote to Son A demanding repayment. The committee was asked whether the lawyer could move to remove Son A as co-executor and pursue a claim against him.

The opinion answered no. It relied on RPC 137, which states that in accepting employment regarding an estate, a lawyer undertakes to represent the personal representative in his or her official capacity and the estate as an entity. Because the lawyer had undertaken to represent all of the co-executors, the lawyer could not take action to have one co-executor removed.

Currency note

This opinion was issued in 1999, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it rests on prior opinion RPC 137 and the conflict principles then in effect. 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 Treat this page as historical context, not current guidance.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 requirement mentioned here.

Common questions

Q: Whom does a North Carolina lawyer hired to administer an estate represent?

A: The opinion held, citing RPC 137, that the lawyer represents the personal representatives in their official capacity and the estate as an entity, not the executors in their individual capacities.

Q: Can the lawyer move to remove one of the co-executors he represents?

A: No. The opinion held that after undertaking to represent all of the co-executors, the lawyer may not take action to have one co-executor removed.

Q: Can the lawyer pursue the suspected debt against the co-executor?

A: The opinion held the lawyer could not pursue a claim against Son A while representing all of the co-executors; demanding repayment from a co-executor the lawyer represents was outside what the representation permitted.

Background and rules framework

The opinion applied North Carolina conflict-of-interest principles (Rule 1.7) and the entity-representation concept reflected in Rule 1.13, the analogues to Model Rules 1.7 and 1.13, as developed for estates in RPC 137. Under RPC 137, the lawyer for an estate represents the personal representatives in their official capacity and the estate as an entity, which prevents the lawyer from acting against one co-executor.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest) / NC Rule 1.7
• MR 1.13 (organization as client) / NC Rule 1.13 (estate as an entity)

Other opinions cited:

• NC RPC 137: a lawyer for an estate represents the personal representatives in their official capacity and the estate as an entity

See also

• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for an Estate or Trust
• NY State Bar Op. 649: Attorney for an Executor Who Breaches a Fiduciary Duty
• ABA Formal Op. 05-434: Disinheriting a Beneficiary Who Is a Client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/99-formal-ethics-opinion-4/

Original opinion text

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

Inquiry:

Several years before her death, Mother loaned $75,000 to Son A. A few years later, Mother signed a statement indicating that the loan had been settled. Mother died testate, leaving a will devising the bulk of her estate to her five children equally and naming her three sons, A, B, and C, co-executors. Letters testamentary were granted to Sons A, B, and C. Sons B and C hired Attorney X to assist with the administration of the estate. Sons B and C believe that the $75,000 given to Son A by Mother during her lifetime should be collected by the estate as a debt or treated as an advance to Son A. Attorney X filed a motion to have Son A's letters testamentary revoked and wrote a letter to Son A requesting repayment of the debt.

May Attorney X make a motion to remove Son A as a co-executor and pursue a claim against him?

Opinion:

No. RPC 137 states that "in accepting employment in regard to an estate, an attorney undertakes to represent the personal representative in his or her official capacity and the estate as an entity." After undertaking to represent all of the co-executors, a lawyer may not take action to have one co-executor removed.