Could the lawyers who obtained an administrator's appointment for a creditor client also represent the administrator in recovering estate property while still representing the creditor's claim?

Plain-English summary

The lawyers represented "A," who held an unliquidated claim for personal services against the estate of "B." Shortly before death, B had conveyed his homestead to "C" for future care and support. If that conveyance were cancelled and the property returned, it could be applied to satisfy A's claim, with a residue for B's heirs (who were uninterested or hostile). On A's behalf, the lawyers had procured the appointment of an administrator to cancel the deed; A's claim would be presented to the administrator and county judge, and if disallowed, sued upon. They asked (1) whether they could represent the administrator in the cancellation suit and (2) whether, on recovery, they could charge the estate for compensation in various scenarios.

On query (1), the Board found no impropriety in accepting employment from the administrator to cancel the conveyance and recover the property, because a creditor is entitled to apply for letters of administration and the lawyers had procured the appointment in the exercise of their client's right. It directed that a contract for such employment first be submitted to and approved by the county court.

On query (2), the Board said the compensation contract should provide for payment by the estate, but added a controlling limit: accepting employment from the administrator in any matter other than procuring his appointment disqualified the lawyers from representing any person with a claim or demand against the estate. They could not, with propriety, both represent the administrator in a suit to recover assets and represent a claimant against the estate. The sub-queries about compensation tied to whether A's claim was sustained therefore had no bearing.

Currency note

This opinion was issued in 1934, 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. 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 Treat this page as historical context, not current guidance.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: Could counsel who got an administrator appointed then represent that administrator?

A: Yes, on the recovery suit. The opinion found no impropriety in representing the administrator to cancel the conveyance and recover property, with a compensation contract first approved by the county court.

Q: Could they keep representing their creditor client's claim at the same time?

A: No. The opinion held that taking employment from the administrator (beyond procuring his appointment) disqualified the lawyers from representing any claimant against the estate, including the original creditor client.

Q: Could the estate pay the lawyers for the recovery work?

A: Yes, under a court-approved compensation contract. The opinion said the contract should provide for compensation paid by the estate.

Background and rules framework

The opinion did not cite a numbered Rule of Professional Conduct; it applied the canon-era prohibition on representing conflicting interests, holding that simultaneously representing an estate's administrator and a claimant against that estate was impermissible. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

The opinion cited no rules, statutes, or cases by number.

See also

• Okla. Bar Ethics Op. 73: Will drafter representing a claimant against the will
• Okla. Bar Ethics Op. 59: Estate counsel representing an heir or claimant

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-81/

Original opinion text

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

Adopted December 27, 1934

The Board of Governors is in receipt of a request for an advisory opinion from a member of the State Bar as follows:

"We are employed by a person, designated as "A" who claims an unliquidated demand against the estate of "B" deceased. Some nine or ten days prior to the death of "B" said decedent conveyed all of his property, which consisted of a homestead, to "C" in consideration of future care and support. "A's" claim against the estate is for personal services rendered decedent during his lifetime. If the property conveyed is returned to the estate and the conveyance cancelled, it can, notwithstanding its homestead character, be applied through the processes of the Probate Court in the satisfaction of "A's" claim. The value of the property is probably in excess of "A's" claim so that, in such event, there will remain a residue for distribution to the heirs of the decedent, "B". All such heirs are either not interested or hostile to the proposed proceedings to cancel such conveyance."

"At the employment of "A" we procured the appointment of an administrator of the estate of "B" for the purpose of canceling the deed made to "C". The claim of our client "A" will be presented to the administrator and the county judge for approval and allowance. If disallowed, a suit against the estate will be instituted thereon and maintained to conclusion in the event of the recovery of the property."

"QUERIES: (1) Is it permissible for us to represent the administrator in a suit to set aside the conveyance and recover the property for the estate? (2) If so, in the event of a cancellation of the conveyance and a recovery of the property, is it proper for us to charge compensation against the estate? (a) at all events. (b) in case the claim of "A" against the estate is not sustained? (c) in case the claim of "A" against the estate is sustained but only as to excess that might come to the heirs?"

In response:

(1) Since a creditor is one of the persons entitled to apply for Letters of Administration under the Code and since you procured the appointment of an administrator in this case in the exercise of your client's right to have such an appointment made, there is no impropriety in your accepting employment from the administrator to cancel the conveyance and recover the property for the estate. A contract for such employment should first be submitted to the County Court and approved.

(2) Query (a) above is answered under the next above response. The contract of employment should contain an agreement for compensation for your services to be paid by the estate.

(2) (b) and (c). Acceptance of employment from the administrator to represent him in any matter save that of procuring his appointment disqualifies you from representation of any person having any sort of a claim or demand against the estate. You cannot, with propriety, represent the administrator in a suit to recover assets for the estate and also represent a claimant against the estate. Therefore, queries (2) (b) and (c) can have no bearing upon the compensation to be paid you by the estate for the recovery of such assets.