What must a lawyer for an estate executor do when the executor breaches, or plans to breach, fiduciary duties, and must the lawyer tell the beneficiaries?

Plain-English summary

The committee answered two questions about the lawyer for the executor of an estate. It began by noting that identifying to whom the lawyer owes duties is partly a question of law outside its jurisdiction, but that the Code and prior opinions establish the executor's lawyer must represent the executor with undivided loyalty while also serving the best interests of the estate, and may not take a position antagonistic to the estate (citing N.Y. State 477 and N.Y. State 512).

On the first question, where the executor proposes to act against the estate's interests to further the executor's own, the committee held the lawyer's duty is clear: call on the executor to fulfill the fiduciary obligation, decline to assist the misconduct in any way, and consider whether withdrawal is permitted or required if the executor refuses (DR 2-110(C); DR 4-101(C)(3)). It drew this directly from N.Y. State 512, where a bank co-executor had violated its fiduciary duties.

On the second question, disclosure of actual misconduct, the committee reasoned that the duty to serve the estate's best interests would point toward disclosure of intentional wrongdoing, but DR 4-101(B) bars revealing a client's confidence or secret unless permitted by the Disciplinary Rules or required by law or court order, and DR 7-102(B)(1) compels revealing a client's fraud except where the information is a protected confidence or secret. Whether an executor's communications are privileged (a "confidence" under DR 4-101(A)) is a question of law the committee could not resolve; information not privileged may still be a "secret." DR 4-101(C)(2) permits disclosure of secrets when required by law or court order. The committee concluded the lawyer should disclose the executor's past misconduct unless disclosure is prohibited because the information qualifies as privileged or as a secret, and in all events must request that the executor rectify the misconduct, withdraw if the executor declines, and not assist any false or misleading conduct.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on confidentiality, disclosure of client fraud, and withdrawal have since been revised. 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: What must the executor's lawyer do if the executor plans to breach fiduciary duties?

A: The committee held the lawyer must call on the executor to act properly, decline to assist the misconduct, and consider whether withdrawal is permitted or required if the executor refuses.

Q: Must the lawyer tell the beneficiaries about the executor's wrongdoing?

A: It depends. The committee held disclosure is barred if the information is a protected confidence or secret; whether it qualifies, and whether law requires disclosure, are questions of law.

Q: Do the estate's beneficiaries have an attorney-client relationship with the executor's lawyer?

A: The committee said that, absent special circumstances, beneficiaries have no attorney-client relationship with the executor's lawyer and have been described as potentially adverse parties.

Background and rules framework

The opinion interpreted DR 4-101(A), (B), and (C) (confidences and secrets and the exceptions for disclosure), DR 5-109, DR 7-102(B)(1) (revealing client fraud), and DR 2-110(C) (permissive withdrawal) of New York's former Code. The closest Model Rule analogues are Rule 1.6 (confidentiality of information) and Rule 1.16 (declining or terminating representation). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• NY DR 4-101(A), (B), (C); DR 5-109; DR 7-102(B)(1); DR 2-110(C)

Cases:

• In re Clarke's Estate, 12 N.Y.2d 183 (1962): attorney for a fiduciary owes the beneficiaries the same undivided loyalty as the fiduciary
• Kramer v. Belfi, 106 A.D.2d 615 (2d Dep't 1984): beneficiaries may not sue the executor's attorney for malpractice

Other opinions cited:

• N.Y. State 512 (1979): executor's lawyer must serve the estate's interests; may withdraw if the executor refuses advice
• N.Y. State 168 (1970): executor's counsel barred from disclosing misappropriation where full restitution was made

See also

• NY State Bar Op. 1034: Lawyer for an executor suspecting fiduciary misconduct
• NY State Bar Op. 1118: Disclosing confidences to collect a fee
• NY State Bar Op. 674: Multiple representation of a corporation and its constituents

Source

• Landing page: https://nysba.org/opinion-649/