Will the bar opine on whether a lawyer-executor may also charge the estate an attorney's fee for his legal work?

Plain-English summary

A member of the bar who had been designated executor in a will he was probating, and had entered upon his duties, asked whether he could ethically charge the estate a reasonable attorney's fee for representing himself in administering it, in addition to his statutory executor's fee; and, where he was being sued as executor on disallowed claims, whether he could ethically serve as attorney in those District Court suits and charge the estate a reasonable attorney's fee to be allowed by the County Judge.

The Board observed that the request invited its opinion on a matter of legal rights rather than professional conduct. Because the court is the proper forum for the orderly presentation and determination of such a matter, the Board concluded it is not one of its functions to enunciate a rule about it, by advisory opinion or otherwise, and referred to the Preface to Volume 1 of Advisory Opinions.

Currency note

This opinion was issued in 1937, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The opinion declined to reach the merits, so it states no rule of conduct to apply. Treat this page as historical context, not current guidance.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: Did the Board say whether a lawyer-executor can charge a separate attorney's fee?

A: No. The Board declined to opine, treating the question as one of legal rights for the court rather than professional conduct.

Q: Why did the Board not decide it?

A: It reasoned that the court is the proper forum to present and determine such a matter, so enunciating a rule was not one of the Board's functions.

Background and rules framework

The opinion did not interpret any specific rule of professional conduct; the Board declined to reach the question because it concerned legal rights, not professional conduct, and pointed to the Preface to Volume 1 of its Advisory Opinions. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• None. The Board declined to opine, citing the Preface to Volume 1 of its Advisory Opinions.

See also

• Okla. Bar Ethics Op. 122: Advancing litigation expenses for an indigent client
• Okla. Bar Ethics Op. 121: A fraudulent low estate appraisal to avoid inheritance tax

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-135/

Original opinion text

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

Adopted May 21, 1937

The Board is in receipt of the following request for an advisory opinion:

"The undersigned, a member of the Oklahoma Bar Association, was designated as executor in a will which he is now probating and has accepted and entered upon his duties as said executor. Can he ethically charge a reasonable attorney's fee in the estate in addition to his fees as executor, provided by law, representing himself in administering the estate? As executor of the estate, he is being sued upon certain claims which have been disallowed. Can he ethically serve as attorney in these law-suits brought in the District Court, and charge a reasonable attorney's fee to the estate, to be allowed by the County Judge?"

In response:

It is to be noted that the request invites the opinion of the Board upon a matter of legal rights rather than upon a matter of professional conduct.

Inasmuch as the court is the proper forum for the orderly presentation and determination of such a matter, the Board is of the opinion that it is not one of its functions to enunciate a rule concerning it, either by advisory opinion or otherwise. In this connection see the "Preface" to Volume 1 of Advisory Opinions.