Could a Vermont lawyer serving as executor select a charity led by the lawyer's clients to receive estate funds?
Apply this to your situation
This page answers the general question as of 1990. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer serving as executor under a friend's will could choose certain public service organizations to receive the residuary estate. The lawyer represented and was close to principals of one prospective beneficiary. The lawyer had disclosed that relationship to the probate court and the will's named beneficiaries.
The committee said acting as executor did not by itself create an attorney-client relationship with the beneficiaries or necessarily constitute legal practice. It was not persuaded that the proposed distribution created a conflict, but recognized an appearance concern. It found the existing disclosures a reasonable way to reduce that concern and concluded the proposed conduct did not violate the former Code.
Currency note
This opinion was issued in 1990 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.
Common questions
Q: Did the executor role itself make the beneficiaries the lawyer's clients?
A: No. The committee said a lawyer's appointment as executor did not itself create an attorney-client relationship with the estate's beneficiaries.
Q: Did the committee require excluding the client-linked organization?
A: No. It said automatic exclusion could frustrate the testator's intentions, and approved the proposed conduct with the disclosed relationship on these facts.
Background and rules framework
The opinion discussed former DR 1-102(A)(7), DR 8-101, and Canon 9 as Code provisions relevant to a lawyer's conduct beyond direct representation. It also cited EC 3-5 on legal services and EC 9-2 on public confidence.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 1-102(A)(7), DR 8-101, Canon 9, EC 3-5, and EC 9-2
See also
- Vermont Ethics Op. 88-08: Executor sale to firm associate
- Vermont Ethics Op. 80-20: Probate judge and estate asset
Source
- Landing page: Vermont Bar Association appearance of impropriety opinions
- Original PDF: Opinion 90-04
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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