Can a lawyer named executor in a client's will probate that will, handle the estate, and charge a fee for the legal work?

Plain-English summary

The inquiry asked whether an attorney named as sole independent executor in a client's will, or as co-executor with a bank or other disinterested party, violates any Canon by probating the will, handling the administration, and charging a reasonable fee, given the concern that the attorney might in some sense be setting his own fee. The Committee concluded there is no violation (8-0).

The Committee reasoned that if the attorney did not solicit in any way the insertion of his name in the will as independent executor, there is no violation of any Canon by his probating the will, handling the administration, and charging a reasonable fee. The Committee said this holds true whether the attorney is named as sole executor or as co-executor, citing Opinion 71.

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a lawyer named executor in a will also act as the estate's attorney and charge a fee?

A: The Committee concluded he may, with no violation, provided he did not solicit his appointment as executor; he can probate the will, handle the administration, and charge a reasonable fee.

Q: Does it matter whether he is sole executor or co-executor with a bank?

A: No. The Committee said the conclusion holds whether the attorney is named as sole executor or as co-executor with a bank or other disinterested party.

Q: What is the key condition the Committee attached?

A: That the attorney did not solicit in any way the insertion of his name as independent executor in the will.

Background and rules framework

The opinion interprets former Texas Canons 6 (conflicting interests) and 24 (solicitation), as applied to a lawyer who is named executor in a client's will. The modern analog is ABA Model Rule 1.7 (conflict of interest, current clients), which frames the personal-interest concern when a lawyer takes a role in a client's estate.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients), as the modern analog
• Texas Canons 6 and 24 (former canons on conflicts and solicitation)

Other opinions cited:

• Texas Opinion 71

See also

• TX Ethics Op. 216: Bank Named Executor and Conflict of Interest
• TX Ethics Op. 215: Law Firm Accepting Estate Matters
• TX Ethics Op. 196: Solicitation and "Feeding" of Law Business

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-182/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_182.pdf

Original opinion text

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

QUESTION PRESENTED

If an attorney is named as sole independent executor in the will of the deceased, then is such attorney or his law firm violating any Canon of Ethics in probating the will and handling the administration charging a reasonable fee therefor? If it is considered that there is violation by reason of the thought that the attorney in some sense is setting his fee for handling the estate, then would the objection be removed if the attorney probates the will and handles the estate under an attorney's fee agreed upon by the attorney and interested principal devisees?

If an attorney is named as co-executor together with a bank or some other disinterested party, then is the attorney in any degree violating any rule of ethics by probating the will and handling the estate by agreement as to the representation and as to fees with the co-executor bank or other party?

18 Baylor L. Rev. 278 (1966)

CONFLICT OF INTERESTS - SOLICITATION - WILLS
No violation of Canons by attorney acting as independent executor, probating the will, handling the administration and charging a reasonable fee.

Canons 6, 24.

The committee is of the opinion that if the attorney did not solicit in any way the insertion of his name in the will as independent executor, there is no violation of any of the Canons of Ethics by such attorney probating the will, handling the administration, and charging a reasonable fee therefor. This is true whether the attorney is named as sole executor or as co-executor. See Opinion 71 of the Committee. (8-0.)

Tex. Comm. On Professional Ethics, Op. 182 (1958)