If someone writes to the estate's lawyer announcing a claim against the estate, does the lawyer have to tell them to get counsel before the filing deadline passes?

Plain-English summary

Opinion E-75-24 arose from a letter a potential claimant sent to the attorney for a decedent's estate, announcing a desire to file a claim for care, medical services, and hospitalization the claimant had provided at his own expense on the decedent's assurance that he would "be taken care of." At the time, no personal representative had been appointed. The attorney did not respond until six days after the deadline for filing claims (three months after the inquiry), when he wrote that he was attorney for the personal representative, could not represent creditors or claimants, and that the claimant should prepare his own claim or retain another lawyer. The delay effectively defeated the claim. The attorney said he "threw the letter aside" until a personal representative was appointed and then advised that representative, but did nothing further.

The committee found that no attorney-client relationship was contemplated or developed; the claimant looked to the attorney as the estate's representative to protect his claim. Even so, the committee concluded the lawyer had a duty to advise the claimant promptly that he had a possible claim and should seek other counsel or contact the register in probate, citing Ethical Considerations 2-2, 2-3, and 7-10. EC 7-10 provides that the duty to represent a client zealously does not override the obligation to treat all persons in the legal process with consideration and to avoid needless harm. The committee also cited DR 7-104(A)(2), which requires that a lawyer not give advice to an unrepresented person, other than to secure counsel, where that person's interests have a reasonable possibility of conflicting with the client's. As to whether the delay involved deception under DR 1-102(A)(4), the committee said that was a question of fact it was not equipped to decide, but it underscored that the obligations under Canons 2 and 7 were positive and pertinent.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's EC 2-2, EC 2-3, EC 7-10, DR 7-104(A)(2), and DR 1-102(A)(4). The current counterpart governing dealings with an unrepresented person is SCR 20:4.3 / Model Rule 4.3. 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: Does an estate's lawyer represent people with claims against the estate?

A: No. The committee confirmed the estate attorney represents the personal representative, not creditors or claimants, and that no attorney-client relationship with the claimant existed here.

Q: Did the lawyer still owe the unrepresented claimant anything?

A: Yes. The committee concluded the lawyer had a duty to advise the claimant promptly that he had a possible claim and should seek other counsel or contact the register in probate, rather than sitting on the letter until the deadline passed.

Q: Was the delay treated as dishonesty?

A: The committee said whether the delay involved deception under DR 1-102(A)(4) was a question of fact it could not decide, but it found the duties under Canons 2 and 7 to advise the claimant promptly were clear.

Background and rules framework

The opinion applied the former Code's Ethical Considerations 2-2, 2-3, and 7-10 and DR 7-104(A)(2) to a lawyer's dealings with an unrepresented potential claimant against the lawyer's client estate. The current counterpart is SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.3 / SCR 20:4.3 (dealing with an unrepresented person); former Code DR 7-104(A)(2), EC 2-2, EC 2-3, EC 7-10, DR 1-102(A)(4)

See also

• WI Ethics Op. E-93-3: Prosecutor Contact With an Unrepresented Defendant
• WI Ethics Op. E-09-02: Prosecutor Dealing With Unrepresented Persons

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-24.pdf