Office of Bar Counsel

• Citation: Vol. 48 No. 1 Pg. 10
• Year: 2025
• Pages: 10

Office of Bar Counsel No. Vol. 48 No. 1 Pg. 10 Wyoming Bar Journal February, 2025

Office of Bar Counsel

Mark W. Gifford

Ethical Issues in Representation of Fiduciaries

There are two main theories regarding the identity of the client when an attorney counsels a fiduciary, i.e., the personal representative of an estate or the trustee of a trust. The American Bar Association in Formal Opinion 94-380 recognized that the majority view is that the attorney represents only the fiduciary and not the beneficiaries, either jointly or individually. Under the theory endorsed by Formal Opinion 94-380, the fact that the fiduciary has obligations to the beneficiaries does not in itself either expand or limit the attorney's obligations to the fiduciary under the Rules of Professional Conduct, nor would it impose on the attorney obligations toward the beneficiaries that the attorney would not have toward other third parties.

As in all matters, an attorney who undertakes to represent a personal representative or trustee should clarify, upon commencement of representation, the role of the attorney, the scope of representation, and the personal representative's or trustee's responsibilities towards the attorney, the court, beneficiaries, and other interested third parties.

Mark Gifford is Bar Counsel for the Wyoming State Bar.

The second approach to client identity in estate representation holds that the client is the estate or trust itself. This view is identical to the entity theory of representation reflected in Rule 1.13 of the Wyoming Rules of Professional Conduct ("Organization as client"). The attorney does not have an attorney-client relationship with either the fiduciary or the beneficiaries. One argument in favor of this position is that estates and trusts are treated as separate legal entities for taxation purposes and that therefore, an estate or trust is a recognizable legal entity. Under this approach, the fiduciary is merely an agent of the entity. Although the Wyoming Supreme Court has recognized the entity rule in the context of representing corporations, Meyer v. Mulligan, 889 P.2d 509, 514 (Wyo. 1995) ("Also bearing on this case is the entity rule, i.e., an attorney who represents a corporation does not, because of that corporate representation, also represent the individual stockholders, officers or directors"), the Court has not applied the entity rule in the context of probate or trust administration.

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