Must an estate executor's lawyer correct a probate accounting after learning that the executor spent funds it listed as held?

Plain-English summary

The lawyer represented an executor of an insolvent estate and filed a final accounting saying the executor held tens of thousands of dollars of estate funds. The executor then told the lawyer that the money had been spent on unrelated personal matters. Probate proceedings were still pending.

The committee applied Vermont Rule 3.3's duty to correct a lawyer's prior false statement of material fact to a tribunal. It concluded that the lawyer had to tell the probate court the accounting was materially inaccurate. The duty applied even if the disclosure revealed information otherwise protected by Rule 1.6.

Before disclosing, the lawyer had to remonstrate with the executor confidentially, explain the duty of candor, and seek the executor's cooperation in correcting the record. The committee limited the disclosure to information sufficient to meet the lawyer's duties, without unnecessary confidential details harmful to the client.

In practice

For the filed accounting described in the opinion, the committee required correction of the material false statement to the probate court after a private attempt to obtain the executor's cooperation. It did not call for disclosure of every fact learned from the executor.

Common questions

Q: Does client confidentiality prevent correction of the probate accounting?

A: No. The committee said Rule 3.3's duty of candor applied even if correcting the material inaccuracy required disclosure of information otherwise protected by Rule 1.6.

Q: What must counsel do before informing the court?

A: The opinion directed counsel to remonstrate privately with the executor, explain the duty to the tribunal, and seek the client's cooperation in correcting the false statement.

Q: How much client information may the lawyer disclose?

A: The opinion called for only enough information to discharge the lawyer's duties under Rules 3.3 and 1.6, avoiding confidential details unnecessary to correct the record.

Background and rules framework

The opinion applied Vermont Rule 3.3(a)'s correction and remedial-measures duties and Rule 3.3(c)'s continuation of those duties despite Rule 1.6. It also discussed Rule 1.6(b)(3) in connection with financial injury to estate creditors from the client's use of estate funds.

Citations and references

Vermont Rules of Professional Conduct:

• Rule 3.3(a), (b), (c), and Comment 10
• Rule 1.6(b)(3)

See also

• NY State Bar Op. 982: Disclosing potential fraud on a tribunal
• NY State Bar Op. 837: False evidence and testimony

Source

• Landing page: VBA disclosure opinions
• Original PDF: Vermont Advisory Opinion 19-01