Ethical Problem Areas for Probate Lawyers
| Publication year | 1990 |
| Pages | 1069 |
| Citation | Vol. 19 No. 6 Pg. 1069 |
1990, June, Pg. 1069. Ethical Problem Areas for Probate Lawyers
The Code was designed with litigation in mind. However, probate practice often differs from the confrontational, "winner take all" scenario of general civil litigation. Thus, the Code's ethical quandaries can enmesh probate practitioners without warning because of their unfamiliarity with those quandaries. This article is designed to heighten alertness to some ethical perplexities often encountered by probate lawyers. These include questions concerning (1) who the lawyer represents, (2) the obligation to withdraw from a case, (3) accepting fiduciary appointments and (4) reporting on possibly unethical behavior by colleagues.
Harmony may not always exist among the "interested persons" with a stake in an estate. It is no longer ethically simple for a family lawyer to provide wise counsel for the surviving spouse and children and, at the same time, to oversee the administration of the deceased's estate. Also gone with the advent of the Uniform Probate Code is the benevolent probate judge who oversaw the estate's administrative process.
Today, all those with a stake in an estate are entitled to full information and can file demands for notice. Each of these persons also has the responsibility to look after his or her own interests. As a "lawyer for the estate," who does an attorney represent in a particular case? Questions arise as to whether (1) the lawyer is responsible to the personal representative alone or to others, such as the heirs, legatees and creditors; and (2) the lawyer ethically can advise the surviving spouse about the augmented estate election or whether to seek additional increments of the family allowance. In short, it is easy to allow representational boundaries to blur.
Functionally, the estate's attorney is an agent of the personal representative, hired by that person to assist and advise in administering the estate. This suggests an obvious ethical guideline: The duties of the lawyer for the estate coincide with the fiduciary duties of the personal representative. These duties include the following:
1. Treat all heirs and legatees alike and impartially. CRS § 15-12-703(1) states a duty to settle and distribute the estate under the terms of the probated will as expeditiously and efficiently as is consistent with the Probate Code. This includes the duty to defend the will "as written"; that is, to offer the will for probate and resist challenges to its admission to probate.
2. Inform "any interested person," on request, as to the existence, amounts and nature of all claims against the estate. Under CRS § 15-12-804(1), there is no requirement to opine as to the outcome of a claim.
Issues such as the above fall within Canon 5 (Conflicts of Interest) and its related cluster of Ethical Considerations and Disciplinary Rules. In this author's opinion, it seems more helpful for the probate lawyer to think in terms of the former ABA Canon 6 as articulated in 1906 (the ancestor of current Canon 5). Former Canon 6 stated:
An estate lawyer faces a conflict of...
To continue reading
Request your trial