Can a lawyer who serves as executor collect both executor's commissions and a separate attorney's fee for legal services to the estate?

Plain-English summary

Lawyer X and another served as Independent Executors and Trustees for minor beneficiaries under a will. The executors hired an independent firm to probate the will, honoring the testator's expressed wish that the firm be consulted. When the beneficiaries' mother (the testator's daughter) sued to construe the will, the executors hired a different firm to defend that action. Lawyer X helped settle the construction suit and handle the probate. The question was whether X could ethically collect commissions as an executor and also collect attorney's fees for legal services apart from his executor acts.

The Committee said this was basically not a conflicting-interest situation, because X's interests as executor and as a lawyer both furthered the estate's rights. Whether he could collect both a commission and a fee for services outside his executor duties was a question of substantive Texas law: if the law forbids it, collecting both is unethical; if the law permits it, collecting both is ethical, and the Committee noted it had previously said this was ethical, citing Opinion 182. A conflict does arise, however, in fixing the amount of the attorney's fee, since X as executor would set the fee of X as attorney. Where all beneficiaries are adults and agree, that is the usual attorney-client fee negotiation, but here, with minor beneficiaries who cannot agree, the same conflict exists in fixing the amount. That makes an excessive fee unethical, and X should not make the final decision; the fee should be fixed or approved by a court rather than left to X's sole judgment. The Committee ruled 9-0.

Currency note

This opinion was issued in 1963, 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 Treat this page as historical context, not current guidance.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-executor collect both a commission and an attorney's fee?

A: Under this opinion, the answer turns on Texas substantive law: if the law permits it, collecting both a commission and a fee for legal services outside the executor's duties is ethical; if it does not, collecting both is unethical.

Q: Can the lawyer-executor set the amount of his own attorney's fee?

A: No. The Committee said a conflict arises in fixing the amount, an excessive fee would be unethical, and X should not make the final decision; the fee should be fixed or approved by a court.

Q: Did the dual role create a conflict of interest in the representation itself?

A: The Committee said it basically did not, because X's interests as executor and as a lawyer both furthered the rights of the estate; the conflict arose only in setting the fee amount.

Background and rules framework

The opinion interprets former Texas Canon 6, on conflicting interests, as applied to a lawyer who serves as executor and also renders legal services to the estate. The modern analogs are ABA Model Rule 1.5, on fees, and Model Rule 1.7, on concurrent conflicts of interest.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees), as the modern analog
• MR 1.7 (concurrent conflicts of interest), as the modern analog
• Texas Canon 6 (former canon)

Other opinions cited:

• Texas Opinion 182: collecting both an executor's commission and an attorney's fee may be ethical

See also

• TX Ethics Op. 293: Sharing the Executor Commission With a Non-Lawyer Co-Executor
• TX Ethics Op. 301: Attorney-Executor Taking a Referral Fee From the Firm He Hired
• TX Ethics Op. 288: Firm Cannot Take One Co-Client Against the Other in an Estate Fight

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-269/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_269.pdf

Original opinion text

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

QUESTION PRESENTED

Lawyer X and another were appointed Independent Executors and Trustees of minor beneficiaries under a will.

The Executors employed an independent law firm to probate the will in response to an expressed desire of the Testator that such firm be consulted.

Later the beneficiaries' Mother (who was also the daughter of the Testator) filed an action in district court to construe the will. The Executors employed another law firm (that is, other than the firm probating the will) to defend the action brought to construe the will.

Lawyer X assisted both in bringing about a settlement of the action to construe the will and in handling the probate.

The question is: Is it ethical, or does it violate the canons of ethics, for Lawyer X to collect commissions as an Executor and also to collect attorney's fees for legal services (apart from his acts as Executor)?

18 Baylor L. Rev. 343 (1966)

CONFLICT OF INTEREST
If it is permitted by substantive Texas law, it is not unethical for a member to collect commissions as the Executor named in a will and also a fee as an attorney for the estate for legal services rendered outside the scope of his duties as Executor; however, it would be unethical for the Executor to make the final decision as to the amount he is to pay himself for an attorney's fee.

Canon 6.

This basically is not a conflicting interest situation, for Lawyer X's interests as Executor and in rendering legal services as a lawyer were in furtherance of the rights of the estate. The question asked is whether he may collect commissions as Executor and also a fee as an attorney for the estate for legal services rendered outside the scope of his duties as Executor. This is a question of substantive Texas law. Insofar as ethics are concerned, the answer is that, if the law does not permit it, it is unethical to collect both commissions and a fee; but, if the law does permit it, it is ethical to collect both the commission and a fee. It has been said previously to be ethical; see Opinion 182.

In determining the amount of the attorney's fee, a conflict of interest does arise since X as Executor is to set the fee of X as an attorney. Normally the solution is easy where all beneficiaries are adults and agree to the fee, for this is merely the usual divergence of interests when an attorney and a client must agree upon a fee. Here, where the beneficiaries are (at least in part) minors and cannot agree on the fee of the attorney, there is the same conflict in the fixing of the amount of the fee, not in the fee per se, but it does not lend itself to the same easy solution. This would make an excessive fee unethical, and X should not make the final decision. Surely there is some method whereby the fee can be fixed by a court or approved by a court so that the size of the fee can be determined other than by the sole judgment of X. (9-0.)

Tex. Comm. On Professional Ethics, Op. 269 (1963)