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OBA Ethics Counsel

Ethics Opinion No. 178

Adopted November 10, 1954

QUERY

An attorney represents an administrator of an estate. He learned that the administrator failed to inventory all items of personal property and in fact sold certain items and has not accounted to the estate for the proceeds of the sale. What would be the recommended action for this attorney to take, keeping in mind that he was employed by the administrator, and not by the heirs.

ANSWER

While under Canon 37 a lawyer must not disclose confidences of a client yet by that same Canon "The announced intention of a client to commit a crime is not included within the confidences which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened."

In Drinker's Legal Ethics, page 138 it is said:

"A lawyer should inform the surrogate of the proposed concealment by his client-executor of an existing grandchild from whom his client proposes to abstract the estate."

The answer to the above inquiry is found in Canon 41, which reads as follows:

"When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps."

In Drinker's Legal Ethics, page 156 it is said:

"When he learns that his client, an executor holding a will naming others as beneficiaries, proposes to conceal the will and appropriate the property, the lawyer should advise the heirs and perhaps the prosecuting attorney."

In this case we think the lawyer should first advise his client-administrator to inventory all items and property--to account for all items sold and make restitution to the estate. Should the administrator refuse to do this, then the lawyer should advise the county court, all heirs, and interested parties of all facts within his knowledge.