Can a lawyer who is co-executor and co-trustee have his own firm represent the estate, and what happens if he must testify?

Plain-English summary

The co-executor of an estate was a partner in a law firm and also one of several co-trustees of a trust created by the residuary clause of the same will, and the testator directed in the will that the co-executor's firm represent the estate. The inquiry asked whether the firm could undertake the estate-administration work.

The controlling rule was DR 5-101(A), which bars a lawyer from accepting employment where his own financial, business, property, or personal interest may affect his professional judgment, except with the client's consent after full and adequate disclosure. Drawing on LE Op. 1358 (an attorney serving as fiduciary who also engages his firm as counsel for the same entity presents a personal conflict under DR 5-101(A)) and the analogy in LE Op. 1353, the committee concluded it is not per se improper for a fiduciary/partner to engage his own firm for estate-administration matters.

Because the individual was both a co-trustee and a co-executor, the committee opined that the consent of the co-fiduciaries had to be obtained before the firm took on the representation, and it urged that the co-fiduciaries, rather than the fiduciary/partner, maintain the necessary communication with the firm throughout administration. Finally, the committee cautioned that under DR 5-101(B) and DR 5-102(A), if it became necessary for the fiduciary/partner to testify at a probate hearing or ensuing litigation, the firm would have to withdraw unless the testimony related solely to an uncontested matter or a matter of formality, and then only if there were no reason to believe substantial contrary evidence would be offered.

Currency note

This opinion was issued in 1990, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 3.7(c) does not impute a testifying lawyer's disqualification to the firm unless the representation would create a conflict under Rule 1.7 or Rule 1.9. 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 Treat this page as historical context, not current guidance.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 who serves as a fiduciary have his own firm represent the estate?

A: Under this 1990 opinion, yes, it is not per se improper. The committee held that an attorney/fiduciary engaging his own firm for estate-administration matters does not violate DR 5-101(A) per se, though the personal conflict it identifies must be addressed through consent after full disclosure.

Q: Whose consent is needed when the lawyer is also a co-fiduciary?

A: The committee said the consent of the co-fiduciaries had to be obtained before the firm took on the representation, and it urged that the co-fiduciaries, rather than the fiduciary/partner, maintain communication with the firm during administration.

Q: What if the lawyer-fiduciary has to testify?

A: The committee cautioned that under DR 5-101(B) and DR 5-102(A) the firm would have to withdraw if the fiduciary/partner had to testify, unless the testimony related solely to an uncontested matter or a matter of formality with no reason to expect substantial contrary evidence.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(A) (employment affected by the lawyer's own interests) and DR 5-101(B) and DR 5-102(A) (the lawyer-as-witness bar). Conflicts arising from a lawyer's personal interest are now in Virginia Rule 1.7, and the lawyer-as-witness rule is Rule 3.7.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(A), DR 5-101(B), DR 5-102(A) (Code of Professional Responsibility)
• ABA Model Rule 1.7 (conflicts; personal interest); Model Rule 3.7 (lawyer as witness)

Other opinions cited:

• Virginia LE Op. 1358: attorney/fiduciary engaging his firm as counsel presents a personal conflict under DR 5-101(A).
• Virginia LE Op. 1353; LE Op. 257; LE Op. 370: related fiduciary and "of counsel" referral analyses.
• N.H. Ethics Op. 1987-8/9 (Sept. 23, 1988).

See also

• VA LEO 1720: Former Estate Administrator Conflict
• VA LEO 1778: Representing an Administrator-Spouse
• VA LEO 1394: Lawyer-Witnesses Taking the Case
• VA LEO 1513: Lawyer-Witness Firm on Appeal

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1387.pdf

Original opinion text

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

Committee Opinion
November 30, 1990
LEGAL ETHICS OPINION 1387

ESTATE LANNING/ADMINISTRATION
– CONFLICT OF INTERESTS –
ATTORNEY AS WITNESS:
ATTORNEY/CO-EXECUTOR
REPRESENTING THE ESTATE WHILE
SERVING AS CO-TRUSTEE OF THE
RESIDUARY TRUST.

You have indicated that the co-executor of an estate is a partner in a law firm and is
also one of several co-trustees of a trust created by the residuary clause of the same will.
The testator also provided in his will that the co-executor's law firm represent the estate.
You have requested that the Committee consider the propriety of the firm's undertaking
the representation as to matters of estate administration.
The appropriate and controlling disciplinary rule applicable to the circumstances you
describe is DR:5-101(A), which precludes a lawyer from accepting employment if the
exercise of his professional judgment on behalf of his client may be affected by his own
financial, business, property, or personal interest except with the consent of his client
after full and adequate disclosure under the circumstances.
The Committee has earlier opined that:
"an attorney who serves as fiduciary to a trust or estate and
additionally engages his law firm as attorney for the same entity presents
a personal conflict as described by DR:5-101(A). In such a situation,
the attorney's own financial, business, or personal interest may
potentially affect the exercise of his professional judgment on behalf of
the trust or estate."
(See LE Op. 1358.) Furthermore, in rendering LE Op. 1358, the Committee analogized
the dual roles of fiduciary and lawyer administering the estate to earlier conclusions
reached wherein LE Op. 1353 found no impropriety in a corporate assistant general
counsel referring his corporate client to an outside law firm with which he was affiliated
as "of counsel," provided that the outside law firm maintain direct communication with
individuals within the corporation other than the assistant general counsel/outside law
firm "of counsel." Thus, it is not per se improper for an executor or trustee
("fiduciary/partner") to engage his own law firm to represent matters of estate
administration. Since the facts you present indicate that the individual in question is both
a co-trustee and co executor, it is the committee's opinion that the consent of the co-fiduciaries must be obtained prior to the firm's taking on representation of the estate. In
addition, the committee urges that the co-fiduciaries, rather than the fiduciary/partner
maintain the necessary communication with the firm throughout the administration of the
estate. (See also LE Op. 257, LE Op. 370; N.H. Ethics Op. 1987-8/9 (Sept. 23, 1988),
ABA/BNA Lawyer's Man. on Prof. Conduct 901:5701.)

Committee Opinion
November 30, 1990
Finally, the Committee cautions that DR:5-101(B) and DR:5-102(A) preclude a lawyer
from accepting or continuing employment if he knows or it is obvious that he or a lawyer
in his firm ought to be called as a witness [in any contemplated or pending litigation]
except in very limited circumstances. Therefore, should it become necessary for the
fiduciary/partner to testify at either a probate hearing or at any ensuing litigation, it would
be necessary for the firm to withdraw from representation unless such testimony would
relate solely to an uncontested matter or to a matter of formality and then only if there
were no reason to believe that substantial evidence would be offered in opposition to the
testimony.
Committee Opinion
November 30, 1990
Legal Ethics Committee Notes. – See Rule 3.7(c) stating that there is no longer
disqualification of the entire firm when a lawyer must testify, unless representation would
create a conflict under Rule 1.7 or Rule 1.9. Under Rule 3.7(c), this disqualification is
not imputed to the lawyer’s firm unless there is an actual conflict of interest.