RI-79

April 19, 1991

SYLLABUS

A lawyer who represents a personal representative of a decedent's estate 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 beneficiaries and heirs.

References: MRPC 1.7; R-10; State Bar v. Estes, 392 Mich 645 (1974). CI-48 and CI-155 are superseded.

TEXT

A lawyer who has been hired to handle the probate of an estate asks whether representation may be undertaken in the following circumstances:

1. The personal representative seeks advice as to whether the personal representative as beneficiary of the estate may file a petition for a family allowance, and whether as surviving spouse the personal representative should abide by the will or elect against it.
2. The personal representative, who is the surviving spouse, wishes to challenge the constitutionality of various statutory provisions which grant benefits to widows but not widowers.

The answer to these questions first requires a determination as to whom the lawyer represents, the personal representative or the beneficiaries of the estate. Under R-10 it was reasoned that the personal representative of the estate, in a fiduciary capacity, is the client of a lawyer hired to pursue a wrongful death claim of an estate. The lawyer represents the personal representative of the estate in the personal representative's fiduciary capacity and not as a beneficiary, and does not represent the beneficiaries or the heirs of the estate.

A personal representative has a fiduciary obligation to act for the benefit of all interested persons in the estate, including retaining assets of the estate. MCL 700.334. The representation that the personal representative seeks in an individual capacity pertains to a redistribution of the estate such that other beneficiaries would receive a smaller share than that provided for under the will. Similarly, in the personal representative's constitutional challenge to the Probate Code is a change in the size of the estate available to interested parties. Representation of the personal representative in an individual capacity would involve recommendations and actions designed to increase the personal representative's personal stake in the estate at the expense of the other interested parties to whom the personal representative owes a fiduciary duty.

Whether the representation of the personal representative on questions pertaining to family allowance, election against the will, and constitutional challenges would adversely affect the lawyer's representation of the personal representative as a fiduciary who must preserve the assets of the estate is a conflicts question governed by MRPC 1.7(b), which states:

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest unless:

"(1) the lawyer reasonably believes the representation will not be adversely affected; and

"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

A personal representative's concern over election against the will is an obvious indicator that the personal representative would not elect against the will unless the personal representative were seeking a greater portion of the estate than that provided for under the will. A decision to elect against the will would affect the amount of assets available to other interested parties of the estate. Such representation would materially limit the lawyer's representation of the personal representative as fiduciary, because the decision to elect against the will and the decision regarding the amount of the family allowance affects the size of the estate available to the interested parties of the estate. Recommendations to the personal representative as fiduciary could be colored by the lawyer's obligations to the personal representative in an individual capacity. As a result, the representation of the personal representative in a fiduciary capacity would be materially limited by the representation of the personal representative in an individual capacity.

The representation would therefore be prohibited unless, pursuant to MRPC 1.7(b)(1), the lawyer reasonably believes the representation will not be adversely affected and, MRPC 1.7(b)(2) the client consents after consultation. The standard to be applied is whether a "disinterested lawyer" would reasonably believe the representation would not be adversely affected, RI-25.

In CI-48, relying upon former MCPR DR 5-105, the Committee determined that a lawyer hired to probate an estate could not represent the widow personal representative as a claimant if the lawyer knew of any facts which led the lawyer to believe there existed any conflict of interest between the widow and the estate, or if such conflicts could arise in the future. However, in the absence of any facts suggesting conflict, the Committee determined that the lawyer could discuss the questions regarding election of the will and the size of the widow's allowance.

In State Bar v. Estes, 392 Mich 645 (1974), a lawyer serving as coexecutor of an estate undertook to represent the other coexecutor at a hearing contesting the transfer of joint ownership of securities to the coexecutor, and appealed the order ruling the securities to be part of the estate. The court stated:

"We are not dealing in a gray or undefined area of professional conduct. Although named and appointed coexecutor of the estate, respondent represented a client whose claim was contrary to the provisions of the will and was antithetical to the best interests of the estate and beneficiaries. This is a self-evident basis for discipline." 392 Mich at 651.

In CI-155, again relying upon former MCPR DR 5-105(A) and (B) and Estes, the Committee determined that it was inappropriate for a lawyer to represent a widower both in his fiduciary capacity as personal representative and in his individual capacity as a challenger of the statutory distribution of an estate.

For the reasons stated above, we conclude a disinterested lawyer could not reasonably believe the representation would not be adversely affected, unless there were no other claimants to the estate to whom the personal representative owed fiduciary duties. Thus, representation of the personal representative in these individual capacities is not permitted under MRPC 1.7(b).