May 20, 1991
The lawyer for a personal representative may follow the instructions of the personal representative to advocate a position which favors some, but not all beneficiaries, as long as the position is not frivolous or "illegal or fraudulent."
References: MRPC 1.2, 1.7, 3.1; R-9, R-10. CI-624 is superseded.
A lawyer for the personal representative of an estate asks whether the personal representative and the lawyer may advocate the position of some beneficiaries to the detriment of others.
In R-10 the Committee held that a lawyer retained by a personal representative is the lawyer for the personal representative as fiduciary.
"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. [Citations.]
". . .
"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. [Citations.]" R-10.
As reasoned in R-10, although potential heirs may benefit from the estate, the lawyer owes no lawyer-client duties to the heirs. 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.
Whether the lawyer may represent the interests of any of the heirs of the estate depends upon whether the heirs interest impermissibly conflict with the duties of the lawyer to the personal representative as fiduciary. Until the 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.
The lawyer must advocate the position of the fiduciary personal representative, MRPC 1.2(a), even when the personal representative favors a position advocated by some, but not all, of the heirs, unless the position is frivolous, MRPC 3.1; R-9, or is "illegal or fraudulent" under MRPC 1.2(c). A lawyer may not allow his/her services to be used to further an illegal or fraudulent act of a client.
Therefore, a lawyer for a personal representative may follow the instructions of the personal representative to advocate a position which favors some, but not all beneficiaries.