Who is the client, anyway?:  A suggested approach for defining the attorney-client relationship when representing the unsophisticated personal representative in an estate case.

It is not uncommon for the attorney-client relationship to sometimes be unclear or confusing to the client.  But what if the relationship is equally unclear or confusing to the lawyer?  This, I am afraid, may too often be the case when a lawyer represents the personal representative in a probate matter.

Who is the client?  The named personal representative of a will comes to your office seeking legal counsel to probate the decedent’s estate.  Who is the client?  Most states, including Michigan, have viewed the personal representative in her fiduciary capacity as the client in this situation. However, Steinway v. Bolden,¹ has created some confusion about who the client is. The Steinway court found that the estate was the client.  In Steinway, the personal representative absconded with funds from the estate and the lawyer literally took the personal representative to the bank to pick up the money.  The Court found that the lawyer could be held accountable for the funds because the "lawyer’s client was the estate."²   While the Court correctly found that the lawyer may be responsible to the estate for the loss of funds, the court at the same time created confusion about who the client is and to whom the lawyer ’s loyalties lie.³ Since Steinway Michigan’s Standing Committee on Professional and Judicial Ethics has consistently recognized the personal representative in her fiduciary capacity as the client.⁴  According to MCR 5.117, "[a]n attorney filing an appearance on behalf of a fiduciary shall represent the fiduciary."  This rule supports a finding that an attorney who files an appearance on behalf of the personal representative represents the personal representative in her fiduciary capacity.⁵

Given this backdrop, the following is a suggested guide for attorneys who represent the unsophisticated personal representative.  By "unsophisticated," I mean, those family members and friends of the decedent who are named as the personal representative, but who have no knowledge of the probate process nor particular expertise to bring to the job.

1. Expand your inquiry regarding a screen for conflicts of interest before accepting the case. There is little guidance under the probate code or the rules of professional responsibility for representing a personal representative.  Potential conflicts of interest should be anticipated and evaluated before taking the case. The comments to the Michigan Rules of Professional Conduct, Rule 1.7 state: "Conflict questions may also arise in estate planning and estate administration...In estate administration the identity of the client may be a question of law. The lawyer should make clear the relationship to the parties involved."

If the client is seeking the lawyer’s assistance in probating the estate, the lawyer will likely represent the client in her fiduciary capacity.  However, the lawyer should discern up front whether the potential client seeks representation as the agent of the decedent or whether the potential client seeks representation in her individual capacity, wishing to protect her own interests.  The unsophisticated client may not see these distinctions or be clear in her own mind about what help she is actually seeking or what rights she may have as an individual. It is up to the lawyer to sort out the client’s goals and, in turn, to define the relationship based on what the client is seeking to accomplish.  It is also up to the lawyer to anticipate potential conflicts of interests, such as when the wife seeks to probate her husband’s estate as the named personal representative, but who as the spouse may have statutory rights which may conflict with the decedent’s wishes as expressed in the will. In addition, the attorney may have represented the potential client in her individual capacity or the decedent (by drafting the will?) in the past.  As such, the lawyer must evaluate whether there is a conflict under MRPC 1.7(a). In sum, the lawyer must determine in what capacity the client seeks representation and whether there is a conflict of interest in representing the client.  Become familiar with the relevant ethics opinions and develop appropriate conflict screening.

2.  The lawyer’s role. If the lawyer agrees to represent the client in her capacity as personal representative, the lawyer should be clear about the fact that he is representing the client in her fiduciary, rather than individual, capacity. What does that mean in the estate context?  The lawyer is agreeing to assist the personal representative to fulfill her duties to the estate–nothing more, nothing less.  While the lawyer does not represent the estate or the beneficiaries, he does have an obligation to counsel and advise the personal representative about her duties to both.  He should make clear to the beneficiaries who he represents and be mindful of his obligation of truthfulness to the beneficiaries.⁶ If the lawyer agrees to represent the client in a fiduciary capacity as the personal representative, then he should educate the client about her role as personal representative.⁷

3. The personal representative’s role.  The personal representative is "under a duty to settle and distribute the decedent’s estate in accordance with the terms of a probated and effective will, and this act, and as expeditiously and efficiently as is consistent with the best interest of the estate."⁸  The personal representative must use her authority "for the best interest of the claimants whose claims have been allowed and of successors to the estate.⁹ The personal representative must properly administer the decedent’s estate pursuant to statutory guidelines.¹⁰ In sum, the personal representative is a court-appointed fiduciary who must act in the best interest of the estate. However, when the named personal representative walks into the lawyer’s office she often does not see herself in this light.  In fact, she typically sees herself as spouse, sister, daughter, or friend of the decedent.  She also sees herself as an individual rather than someone acting in a representative capacity.  This is the person the lawyer must prepare to meet.

4.  The lawyer should educate the client about her role as fiduciary and confirm their relationship in writing. When interviewing the named personal representative the lawyer is embarking on a unique attorney-client relationship. It is essential that the lawyer educate the potential client about the personal representative’s duties and then assist the client in making an informed decision about whether she wants to serve as personal representative.¹¹  The lawyer should consider sending the potential client an information packet or letter before the initial interview describing the personal representative’s role and responsibilities and the probate court process.  At the initial interview the fiduciary’s role and duties should be thoroughly discussed with the client and the client’s questions and concerns answered. Of course, the attorney may not be able to answer all of the client’s questions at the initial interview.  However, the attorney should be well-versed in the fiduciary role the client will be required to take on and he should be able to explain both the client’s role as fiduciary and his role as her lawyer. In addition, the lawyer should explain to the client the difference between what it means to represent the client in a fiduciary capacity versus in an individual capacity.  The lawyer should feel confident that the client understands the difference.  If the client chooses to seek appointment as the personal representative, a follow-up letter should be sent to the client confirming her decision and  her duties.¹²   The lawyer should present the client with a written retainer agreement that clearly defines the attorney-client relationship.¹³  Throughout the representation the lawyer should meet frequently with the personal representative to oversee her actions.  For example, immediately following the court’s appointment of the personal representative the lawyer should meet with the client to make or review a list of estate assets and known liabilities.  The lawyer should counsel the client about securing assets, the maintenance of a separate fiduciary account, priority debts, and other pertinent information related to the proper administration of the estate.  The lawyer should strongly encourage communication from client to ensure that the personal representative is carrying out her duties correctly.

By following these guidelines, the unsophisticated client will understand what it means to be in a fiduciary role.  She will be more likely to communicate and cooperate with the lawyer, and perform her duties properly.  The lawyer will avoid ethical dilemmas by making who he represents clear not only to his client, but to the court and the beneficiaries.  By thoughtfully embarking on this unique attorney-client relationship, the client and the estate are both served. 

Marla L. Mitchell-Cichon, Associate Professor, Thomas M. Cooley School of Law, Clinical Supervisor, Sixty Plus Elderlaw Clinic.  This is an excerpt from a longer work-in-progress and may not be reproduced without the author’s written permission. Comments and questions are strongly encouraged at or 371-5140.

Note: This article previously appeared in the January 2002 edition of BRIEFs, the newsletter of the Ingham County Bar Association.

            ¹185 Mich. App. 234, 460 N.W. 2d 306 (1990) Steinway was decided prior to the enactment of the EPIC.

            ²Id.  The successor personal representative sought surcharge against the personal representative and sought joint and several liability against the first personal representative’s attorney.

            ³The court held that the probate court had subject matter jurisdiction over the newly appointed personal representative’s claim against the lawyer.  Based on the facts of Steinway, the court was correct in recognizing the lawyer’s potential liability to the estate.  However, the court could have done that without finding the estate was the client.  See MRPC 1.2(c), comments: "Where the client is a fiduciary the lawyer may be charged with special obligations in dealing with a beneficiary."  4.1 (Truthfulness in Statements to Others);1.6(c)(3) and comments (Confidentiality); 1.16(a)(1) (Withdrawal); 1.8(j) Conflict of Interest: Prohibited Transactions (2001).

            ⁴R-10, April 19, 1991: "A lawyer retained by a personal representative of a decedent’s estate pursued a wrongful death action is the lawyer for the personal representative as fiduciary." The lawyer must advocate for the distribution proposed by the fiduciary unless it is illegal or fraudulent."

            RI-79, April 19, 1991: "A lawyer who represents a personal representative in a fiduciary capacity may not represent the personal representative in an individual capacity on issues pertaining to election against a will, family allowances, and constitutional challenges to the amount distributed to the beneficiary and heirs."

            RI-80, April 19, 1991: "A lawyer hired by co-personal representatives of a decedent’s estate is the lawyer for the co-personal representatives and not the estate."

            RI-156, March 3, 1993: "A lawyer retained by the personal representative of the decedent’s estate is the lawyer for the personal representative as fiduciary and not for the estate beneficiaries.

            But note different views in the guardianship and conservatorship context.  See RI-304, December 18, 1997 ("In Michigan, the client is the guardianship or conservatorship as an ‘entity,’ not the guardian or ward," citing Steinway.)  See also: CI-805, September 3, 1982.

            ⁵The language of the rule was changed in 1993 perhaps in response to Steinway.  The pre-Steinway version of the rule simply stated that an appearance by an attorney must be writing, with no specific reference to representing fiduciaries.  MCR 5.117 (1990).

            ⁶MRPC 4.1.

            ⁷Ethics Committee for the State of Michigan, Opinion R-10.  MRPC 1.2(a) and 1.4(b).

            ⁸MCLA,700.3703(1) (2000).

            ⁹Id.

            ¹⁰See MCLA,700.3703-700.3706 (2000) for the personal representative’s specific duties.

            ¹¹MRPC 1.2 and 2.1 (2001).

            ¹²For copies of a sample engagement letter and retainer agreement contact the author.  The American College of Trust Estate Counsel is also a good source for sample letters. See Engagement Letters: A Guide For Practitioners, V. Representation of Fiduciaries, ACTEC (3d Ed.)

            ¹³Id.