Can a lawyer and a non-lawyer who serve as co-executors split the statutory executor's commission?

Plain-English summary

A lawyer and a non-lawyer were named in a will as independent co-executors, and both qualified and served. The question was whether Canon 31 was violated if they shared the statutory commission for their services in administering the estate.

The Committee concluded it was not. Canon 31 prohibits dividing "fees for legal services" with non-lawyers, but it does not prohibit a lawyer from sharing compensation for other services with non-lawyers. The statutory executor's commission could therefore be divided between the co-executors, provided that the lawyer's fee for legal services was not included in the commission and was not shared with the non-lawyer. The vote was 9-0.

Currency note

This opinion was issued in 1964, 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 Treat this page as historical context, not current guidance.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 split the executor's commission with a non-lawyer co-executor?

A: The Committee said yes. The statutory commission is compensation for executor services, not legal services, so dividing it does not violate Canon 31's bar on sharing legal fees with non-lawyers.

Q: What is the condition the Committee attached?

A: The lawyer's fee for legal services must not be included in the commission and must not be shared with the non-lawyer. Only the executor's commission may be split.

Q: Why doesn't Canon 31 bar this split?

A: Because Canon 31 only prohibits dividing fees for legal services with non-lawyers; it does not reach a lawyer's compensation for non-legal services such as serving as an executor.

Background and rules framework

The opinion interprets former Texas Canon 31, which barred dividing fees for legal services with non-lawyers. The modern analogs are ABA Model Rule 5.4 (professional independence of a lawyer, including the limits on sharing legal fees with non-lawyers) and Model Rule 1.5 (fees).

Citations and references

Rules of Professional Conduct:

• MR 5.4 (sharing legal fees with non-lawyers), as the modern analog
• MR 1.5 (fees), as the modern analog
• Texas Canon 31 (former canon)

See also

• TX Ethics Op. 301: Attorney-Executor Taking a Referral Fee From the Firm He Hired
• TX Ethics Op. 309: County Attorney Soliciting Private Work and Taking Referral Fees
• TX Ethics Op. 311: Habitual Undercharging Below a Minimum Fee Schedule

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-293/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_293.pdf

Original opinion text

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

QUESTION PRESENTED

Where a lawyer and a non-lawyer are named in a will as independent co-executors and both qualify and serve as such, would it be a violation of Canon 31 for the lawyer and the non-lawyer to share the statutory commission for their services in administering the estate?

18 Baylor L. Rev. 361 (1966)

DIVISION OF LEGAL FEES - LAWYER SERVING AS INDEPENDENT CO- EXECUTOR
Statutory executor's commission may be divided between two co-executors, although one of them is a lawyer and the other is not.

Canon 31 prohibits the division with non-lawyers of "fees for legal services," but does not prohibit a lawyer from sharing compensation for other services with non-lawyers. Therefore, the statutory executor's commission may be divided between he co-executors provided that the lawyer's fee for legal services is not included in such commission and is not shared with the non- lawyer. (9-0.)

Tex. Comm. On Professional Ethics, Op. 293 (1964)