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Ethics Opinion

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THIS OPINION IS LIMITED BY RI-350

R-10

April 19, 1991

SYLLABUS

    A lawyer retained by a personal representative of a decedent's estate to pursue a wrongful death action is the lawyer for the personal representative as fiduciary.

    A lawyer shall clarify for all interested persons that the lawyer's role is representing the personal representative as fiduciary, and when the lawyer knows that another person misunderstands the lawyer's role, the lawyer shall make reasonable efforts to correct the misunderstanding, including advising the person to seek independent counsel.

    A lawyer who has undertaken representation of multiple clients in a wrongful death action, which clients are later unable to agree on the proposed distribution under the wrongful death judgment, must withdraw from the representation of all clients.

    The lawyer for the personal representative may not represent another person who wishes to challenge the allocation of the wrongful death action proceeds proposed by the personal representative, because a disinterested lawyer could not reasonably believe that representation of the other person would not be adversely affected by representation of the personal representative as fiduciary.

    The lawyer must advocate the distribution proposed by the fiduciary personal representative unless it is illegal or fraudulent. The lawyer may not allow the lawyer's services to be used to assist a fraudulent or illegal act.

    References: MRPC 1.2, 1.3, 1.4, 1.6, 1.7, 1.15, 1.16, 3.3, 4.3, 5.4(c); C-75; MCR 8.303; MCL 600.2922, MSA 27A.2922; MCL 700.543 et seq, MSA 27.5543 et seq; Becht v. Miller, 279 Mich 629 (1937); Crystal v. Hubbard, 414 Mich 297 (1982); Steinway v. Bolden, 185 Mich App 234 (1990); Stover v. Wayne County Probate Judge, 219 Mich 566 (1922); Wright v. Estate of Treichel, 36 Mich App 33 (1971); ABA Model Code of Professional Responsibility, EC 5-18; ABA i1017.

TEXT

A lawyer is retained by the personal representative of an estate to pursue a wrongful death claim. After settlement of the wrongful death case there develops extensive controversy concerning allocation and distribution of proceeds among family members, one of whom is the personal representative of the decedent's estate.

  1. May the lawyer propose a distribution to the Court when the family member claimants have already failed to agree to allocation?
  2. May the lawyer represent the interest of the personal representative as an individual claimant in a hearing on allocation and distribution?

I. WHO IS THE CLIENT?

In order to determine whether the lawyer may undertake the representation proposed, we must first determine whom the lawyer currently represents and to whom the lawyer owes duties of loyalty, confidentiality, accountability, and independent professional judgment. In short, the question is "who is the lawyer's client?"

A personal representative has broad statutory authority to hire professional assistance as needed to enable the personal representative to fulfill duties regarding administration, settlement of claims, accounting and distribution of estate assets, MCL 700.543. Funds of the estate, which are the fiduciary responsibility of the personal representative, may be used to hire such professionals, MCL 700.543, MCR 8.303.

The weight of authority, although not unanimous, holds that the personal representative of the estate is the lawyer's client. See C-75; Wright v. Estate of Treichel, 36 Mich App 33 (1971); Stover v. Wayne County Probate Judge, 219 Mich 566 (1922); Becht v. Miller, 279 Mich 629 (1937); ABA i1017; ABA Model Code of Professional Responsibility, EC 5-18.

We note that Steinway v. Bolden, 185 Mich App 234 (1990) holds that a lawyer is "attorney for the estate" for purposes of the lawyer's liability when the personal representative misappropriates estate funds. In that case the court noted that pleadings filed in the matter refer to the lawyer as "attorney for the estate." The court noted that the lawyer's fees (1) must be approved by the court, not just by the personal representative, (2) are paid from the estate, not by the personal representative, and (3) were in fact approved, paid, and accepted by the lawyer in this manner. These facts led the court to conclude that the lawyer was estopped from denying that no duty was owed to the estate.

When considering "who is the client" for purposes of ethics duties of loyalty, confidentiality and conflicts, however, a different result must be reached. The existence of a lawyer-client relationship is not determined merely by who pays the bill; parents frequently pay for legal representation for children, insurers pay for insured, employers pay for employees, yet the lawyer owes no duties to the payor. MRPC 5.4(c) specifically protects a lawyer's independent professional judgment from being affected by one who pays for the representation of another. Further, Steinway, which was not a wrongful death case, is distinguishable from the present inquiry since a wrongful death action must be brought by and in the name of the personal representative of the estate of the deceased person, MCL 600.2922. Thus, the pleadings filed in the instant matter would show the lawyer appearing on behalf of the personal representative.

We further note that the personal representative may hire a lawyer without court approval and without notice to interested parties. The personal representative may limit the scope or objectives of the representation pursuant to MRPC 1.2(b), and hire the same lawyer or a different lawyer to pursue or defend a particular legal claim. The lawyer is provided information by and obtains instructions from the personal representative, and provides advice, counsel and suggestions to the personal representative in the fulfillment of the personal representative's fiduciary duties. If the personal representative were not the lawyer's client, no privilege would attach to these communications and the lawyer would not be required to preserve the information as confidences and secrets, MRPC 1.6. The lawyer's compliance with duties of diligence, MRPC 1.3, communication, MRPC 1.4, and accounting, MRPC 1.15, similarly can only be weighed as to the lawyer's communications with the personal representative.

A conclusion that a lawyer retained by a fiduciary represents the fiduciary, and not the beneficiaries or heirs, is supported by the entire scheme of the Michigan Probate Code, which makes clear that a fiduciary has obligations to the beneficiaries who, in turn, have rights against the fiduciary. See, MCL 700.544, liability of fiduciary for wrongdoing; 700.563, duty of fiduciary to file accountings and close estate; 700.552, beneficiary may object to a fiduciary continuing a business held by the estate; 700.572, beneficiary may file petition requiring fiduciary to settle estate.

A careful analysis of the entire Wrongful Death Act, MCL 600.2922, demonstrates that the Wrongful Death Act imposes upon a fiduciary certain obligations to the heirs, and that the lawyer for the personal representative is not the lawyer for the heirs. However, MRPC 1.2(a) and MRPC 1.4(b) require the lawyer for the personal representative to counsel the personal representative regarding specific fiduciary obligations owed to the beneficiaries of the estate.

II. MULTIPLE REPRESENTATION: WRONGFUL DEATH ACTION

Having concluded that the personal representative is the lawyer's "client," we then apply the general conflict rule, MPRC 1.7. The lawyer may not pursue any action or proposal which conflicts with the duties the lawyer has undertaken on behalf of the personal representative acting as fiduciary.

To pursue the wrongful death claim for the fiduciary personal representative, a lawyer would ordinarily contact the heirs and claimants, notify them of the action, collect evidence, and evaluate testimony appropriate to pursue the claim. Although the heirs and claimants are interested parties and may benefit from a successful wrongful death action, they are not "clients" of the lawyer in the matter. The lawyer should therefore approach such persons pursuant to MRPC 4.1 and 4.3, which state:

    "4.1. Truthfulness in Statements to Others. In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person."

    "4.3 Dealing With an Unrepresented Person. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." Emphasis added.

The lawyer for the fiduciary personal representative must clarify for all interested persons that the lawyer's client is the personal representative as fiduciary. When the lawyer knows that an heir or claimant misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding, making it clear that if the person desires to be represented, independent counsel should be contacted.

Although potential heirs may benefit from the wrongful death action if it is successful, the lawyer owes no lawyer-client duties to the heirs, unless the lawyer has undertaken multiple representation of the heirs along with the fiduciary personal representative in the wrongful death case. Multiple representation would be proper only pursuant to MRPC 1.7, which requires the lawyer to counsel the prospective clients concerning conflicts of interest which may arise or which already are known to exist. The lawyer should have made an independent judgment as to whether the representation of the heirs would be directly adverse to or materially limited by the lawyer's duties to the personal representative, and whether a disinterested lawyer would conclude the representation of all prospective clients would not be adversely affected. If not, the lawyer may not counsel the prospective clients or seek their consent to the multiple representation.

III. MULTIPLE REPRESENTATION: DISTRIBUTION PROCEEDING

Whether the lawyer may represent the interests of any of the heirs at the allocation hearing depends upon a similar analysis. The lawyer has not completed duties to the personal representative as fiduciary until the order allocating the wrongful death case proceeds has been entered. Until that employment for the personal representative has been fulfilled, the lawyer may not represent a new client whose interests are directly adverse, MRPC 1.7(a), or would be materially limited by, MRPC 1.7(b), the lawyer's duties to the fiduciary personal representative.

In the event of controversy over the allocation and distribution of the proceeds, the lawyer must advise all persons who may be entitled to participate in the recovery that the lawyer represents the personal representative in a fiduciary role, and that they should obtain independent counsel if they wish to challenge the personal representative's proposed allocation. See, MRPC 4.3, communication with unrepresented persons.  If there are heirs who agree with the fiduciary personal representative's proposed distribution, and those heirs and the personal representative consent to the lawyer's multiple representation of their interests, the lawyer may proceed. Those heirs who do not agree with the proposed distribution may not be represented by the lawyer, MRPC 1.7(a)(1) and MRPC 1.7(b)(1). If the lawyer undertakes multiple representation and there later develops a controversy over the allocation and distribution of the proceeds, the lawyer must withdraw from the representation of all clients.

May the lawyer represent the personal representative as claimant and as fiduciary at the allocation proceeding? In CI-155, citing to State Bar v. Estes, 392 Mich 645 (1974), the Committee held that where a personal representative is also a claimant against the estate it was improper for a lawyer to represent the personal representative in both capacities. In CI-155 and in Estes, however, the interests of the personal representative as fiduciary and as claimant were not the same; the personal representative as claimant was challenging laws and determinations which the personal representative as fiduciary was required under law to follow.

Applying MRPC 1.7(a)(1) and 1.7(b)(1), if a disinterested lawyer could not reasonably conclude that representation of the claimant would not adversely affect the representation of the fiduciary, the lawyer may not undertake the dual representation. Client consent under MRPC 1.7(a)(2) or MPRC 1.7(b)(2) would not suffice, since consent is only available to permit dual representation in situations where the representation of one or the other clients will not be adversely affected. The requirements of MRPC 1.7(a)(1) and (b)(1) cannot be waived by the client. Thus, if the interests of the personal representative as claimant and as fiduciary are the same, the lawyer is not prohibited from representing the personal representative in the allocation proceeding in both capacities.

IV. LAWYER'S DISAGREEMENT WITH PROPOSED DISTRIBUTION

When the lawyer and the client fiduciary personal representative disagree on a distribution of wrongful death proceeds proposed by the client, the lawyer may counsel the client and attempt to persuade the client to the lawyer's point of view, but ultimately the proposed distribution is the statutory responsibility of the client. Crystal v. Hubbard, 414 Mich 297 (1982). The lawyer must advocate the distribution proposed by the fiduciary personal representative, MRPC 1.2(a), unless the proposed distribution is "illegal or fraudulent" under MRPC 1.2(c), which states:

    "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client andmay counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law." Emphasis added.

ABA Model Rule of Professional Conduct 1.2(d), from which MRPC 1.2(c) is drawn, uses the phrase "criminal or fraudulent" rather than "illegal or fraudulent." Thus, Rule 1.2(c) as adopted in Michigan includes civil illegality as well as criminal illegality.

If the proposed distribution is illegal or fraudulent, the lawyer may not allow the lawyer's services to be used to assist the illegal act or fraud, and thus may not propose the distribution to the court. If the client persists, the lawyer must withdraw, MRPC 1.16(a)(1). If the illegality or fraud is not uncovered until the lawyer's services have been used in furtherance thereof, the lawyer has the option to reveal the fraudulent or illegal act of the client only to the extent reasonably necessary to achieve rectification, MRPC 1.6(c)(3). In some cases the lawyer may be required to make disclosures of material facts to the tribunal when disclosure is necessary to avoid assisting the client, MRPC 3.3(a)(2).

 
     

 

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