May the oil-lease purchaser's lawyer file the sale petition in a guardianship or estate that already has its own attorney of record?

Plain-English summary

The Central Committee asked whether, when Attorney A is attorney of record for a guardian, executor, or administrator, Attorney B, who represents a purchaser of an oil lease on property in that guardianship or estate, may file the petition and proceedings to effect the sale, or whether the sale should be handled through the estate's attorney of record.

The committee said the question involves not so much legal ethics as statutory procedure. It said it can reasonably be urged, under 58 Okla. Stat. Ann. §§ 412, 808, and 825, that the petition for sale properly should be filed by the attorney of record for the guardian or estate. Both attorneys have a strong interest in the proceeding being handled effectively and correctly, so there may be good reason to work cooperatively, and while the proceeding apparently should be filed formally by Attorney A, there is no reason Attorney B may not draft the documents, at least on a preliminary basis. The committee said both attorneys should adhere to the Canons, and that the last paragraph of Canon 7 should be strictly adhered to: efforts to encroach upon another lawyer's professional employment are unworthy, though a lawyer may give proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communicating with the lawyer complained of.

In an addendum, the Central Committee approved the opinion and added emphasis: Attorney B should not assume to put through the sale proceedings for the guardian without Attorney A's approval unless it has been definitely determined that Attorney A no longer represents the guardian. In that event, since Attorney B represents the purchaser, he should make that fact clear to the guardian, suggest the guardian may wish to employ other counsel to pass on the proceedings, and make clear that he is not in a position to represent the guardian.

Currency note

This opinion was issued in 1957, 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 rules on dealing with another lawyer's client, on unrepresented persons, and on conflicts are stated and applied differently today (for example Rules 4.2, 4.3, and 1.7). 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: Who should file the petition to sell the oil lease?

A: The committee said the petition should formally be filed by the estate or guardian's attorney of record, Attorney A, under 58 Okla. Stat. Ann. §§ 412, 808, and 825.

Q: Could the purchaser's lawyer help with the proceeding?

A: Yes. The committee said there is no reason Attorney B may not draft the documents, at least on a preliminary basis, and that the two attorneys may work cooperatively.

Q: What must the purchaser's lawyer do if the estate no longer has counsel?

A: He should make clear to the guardian that he represents the purchaser, suggest the guardian may want other counsel to review the proceedings, and make clear he is not in a position to represent the guardian.

Background and rules framework

The opinion applied Canon 7 of the Canons of Professional Ethics, adopted in Oklahoma (encroaching on another lawyer's employment), together with the probate-sale statutes 58 Okla. Stat. Ann. §§ 412, 808, and 825. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 7 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): efforts to encroach upon another lawyer's professional employment are unworthy, though a lawyer may advise those seeking relief against unfaithful or neglectful counsel, generally after communicating with that lawyer.

Statutes:

• 58 Okla. Stat. Ann. §§ 412, 808, 825 (petition for sale by the attorney of record for the guardian or estate)

See also

• Okla. Bar Ethics Op. 177: Letter to a represented opposing party
• Okla. Bar Ethics Op. 184: Defending after a prospective client consulted the partner

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-188/

Original opinion text

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

Adopted July 8, 1957

The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:

INQUIRY

Where Attorney A is attorney of record for a guardian, executor, or administrator, is it proper or ethical for Attorney B. who represents an oil lease purchaser on property in such guardianship or estate, to file petition and proceedings to effect such sale, or should such sale be handled by and through the attorney of record for such guardianship or estate?

OPINION

This questions appears to involve not so much legal ethics as statutory procedure. It can be reasonably urged, under 58 Okl. St. Ann. ss 412, 808 and 825, the petition for sale properly should be filed by the attorney of record for the guardian or estate. Of course, Attorney A and Attorney B both have a strong interest in seeing that the proceeding is handled effectively and correctly. Accordingly, there may be good reason for the two attorneys to work cooperatively in the matter. While the proceeding apparently should be filed formally by Attorney A, there is no reason why Attorney B may not draft the documents, etc., at least on a preliminary basis.

Naturally, in all relations with each other and in their relations with their own and with each other’s clients, both Attorneys A and B should adhere to the applicable canons of the Canons of Professional Ethics of the American Bar Association. The provisions of the last paragraph of Canon 7 should be strictly adhered to. It reads as follows:

“Efforts, direct or indirect, in any way to encroach upon the professional employment of another lawyer, are unworthy of those who should be brethren at the Bar; but, nevertheless, it is the right of any lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the complaint is made.”

ADDENDUM

The Central Committee approves Advisory Opinion No. 188 as written by the Legal Ethics Committee, Joseph G. Rucks, Chairman. The Central Committee believes it correct to add some emphasis to the effect that Attorney B should not assume to put through proceedings for the sale of an oil lease by the Guardian, without the approval of Attorney A, unless it has been definitely determined that Attorney A no longer represents the Guardian. In that event, since B represents the purchaser, he should make this fact clear to the Guardian and suggest to the Guardian that if he no longer relies on Attorney A he may wish to employ other counsel to pass upon the proceedings as the Guardian’s attorney. Attorney B representing the purchaser should make it clear to the Guardian that he is not in a position to represent the Guardian.