Chapter 20 - § 20.17 • ADVICE OF COUNSEL

• Jurisdiction: Colorado

§ 20.17 • ADVICE OF COUNSEL

A diligent representative will protect the estate from his or her ignorance of the law by employing and heeding the advice of counsel; however, both the representative and the lawyer should be aware of the limitations on the protection of relying on such advice. There is a general misunderstanding that reliance in good faith on the advice of competent counsel is full protection to the representative. Where the advice relates to the extent of the powers or duties of the representative and the advice is wrong, the representative is not protected in having relied upon it, even though the attorney is competent or the representative had good grounds for considering counsel to be competent. The same thing would be true if the mistaken advice related to the meaning of the will or of a statute relating to his or her powers or duties.³⁰ If, however, the mistake of law has to do with administrative matters such as the title to property on which a mortgage is being taken, or the prospects of being successful in a suit against a debtor, the advice of counsel usually protects the representative.³¹

But see Vento v. Colorado Nat. Bank-Pueblo, 907 P.2d 642 (Colo. App. 1995) (no protection from advice of counsel where counsel lacked expertise in area where advice sought).

Several cases have discussed advice of counsel protection. A fiduciary may not be protected from beneficiary claims of improper administration or distribution based on erroneous advice of counsel. Part of the rationale for this rule is that the fiduciary has the option to seek a court order of instructions, rather than rely on...