What should a lawyer do when the estate administrator he represents has concealed and sold estate property without accounting for it?

Plain-English summary

A lawyer represented the administrator of an estate and learned that the administrator had failed to inventory all items of personal property, had in fact sold certain items, and had not accounted to the estate for the proceeds. The lawyer was employed by the administrator, not by the heirs, and asked what action was recommended.

The committee began with Canon 37, which bars a lawyer from disclosing a client's confidences, but noted the same Canon excepts the announced intention of a client to commit a crime: the lawyer may make such disclosures as may be necessary to prevent the act or protect those threatened. Quoting Drinker's Legal Ethics, it observed that a lawyer should inform the surrogate of a client-executor's proposed concealment of an existing grandchild from whom the client proposed to abstract the estate.

The committee located the answer in Canon 41: when a lawyer discovers that a fraud or deception has unjustly imposed on the court or a party, the lawyer should try to rectify it, first by advising the client, and if the client refuses to forego the unjustly gained advantage, by promptly informing the injured person or counsel so they may take appropriate steps. Again quoting Drinker, it noted that when a lawyer learns the client-executor proposes to conceal a will and appropriate the property, the lawyer should advise the heirs and perhaps the prosecuting attorney. Applying this, the committee concluded the lawyer should first advise the administrator to inventory all items, account for items sold, and make restitution, and if the administrator refused, should advise the county court, all heirs, and interested parties of all facts within the lawyer's knowledge.

Currency note

This opinion was issued in 1954, 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 handling of client confidences, fraud on a tribunal, and a lawyer's disclosure duties is governed today by different rules (for example Rules 1.6, 1.13, 3.3, and 4.1) that are stated and applied differently than Canons 37 and 41. Treat this page as historical context, not current guidance.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 was the lawyer's first step under this opinion?

A: The committee said the lawyer should first advise the administrator-client to inventory all items and property, account for all items sold, and make restitution to the estate.

Q: What if the administrator refused to correct the concealment?

A: Then, the committee said, the lawyer should advise the county court, all heirs, and interested parties of all facts within the lawyer's knowledge.

Q: How did the committee reconcile this with the duty of confidentiality?

A: It read Canon 37 as protecting confidences but excepting a client's announced intention to commit a crime, and located the affirmative duty in Canon 41, which directs a lawyer to rectify a fraud unjustly imposed on a court or party.

Background and rules framework

The opinion applied Canon 37 (confidences of a client, with its crime exception) and Canon 41 (a lawyer's duty to rectify fraud or deception practiced on a court or party), drawing on Henry S. Drinker's treatise. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 37 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer must not disclose a client's confidences; the announced intention of a client to commit a crime is excepted.
• Canon 41: when a lawyer discovers a fraud or deception unjustly imposed on a court or party, the lawyer should rectify it, first by advising the client and then by informing the injured person or counsel.

Other authorities:

• Henry S. Drinker, Legal Ethics, pp. 138, 156

See also

• Okla. Bar Ethics Op. 177: Letter to a represented opposing party
• Okla. Bar Ethics Op. 166: County judge preparing income tax returns

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-178/

Original opinion text

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

Adopted November 10, 1954

QUERY

An attorney represents an administrator of an estate. He learned that the administrator failed to inventory all items of personal property and in fact sold certain items and has not accounted to the estate for the proceeds of the sale. What would be the recommended action for this attorney to take, keeping in mind that he was employed by the administrator, and not by the heirs.

ANSWER

While under Canon 37 a lawyer must not disclose confidences of a client yet by that same Canon “The announced intention of a client to commit a crime is not included within the confidences which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened.”

In Drinker’s Legal Ethics, page 138 it is said:

“A lawyer should inform the surrogate of the proposed concealment by his client-executor of an existing grandchild from whom his client proposes to abstract the estate.”

The answer to the above inquiry is found in Canon 41, which reads as follows:

“When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps.”

In Drinker’s Legal Ethics, page 156 it is said:

“When he learns that his client, an executor holding a will naming others as beneficiaries, proposes to conceal the will and appropriate the property, the lawyer should advise the heirs and perhaps the prosecuting attorney.”

In this case we think the lawyer should first advise his client-administrator to inventory all items and property–to account for all items sold and make restitution to the estate. Should the administrator refuse to do this, then the lawyer should advise the county court, all heirs, and interested parties of all facts within his knowledge.