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OBA Ethics Counsel

Ethics Opinion No. 298

Adopted 1980

INQUIRY

1. May an attorney act as an executor for an estate and serve as the attorney for the estate?

2. If the attorney may serve both as the executor and attorney for the estate, may he charge for his services rendered in each position?

OPINION

The answer to Inquiry No. 1 is in the affirmative for the reasons set out below:

The question of an attorney serving in a combined role of executor and attorney for an estate has not been presented to the American Bar Association or the Oklahoma Bar Association Legal Ethics Committees. Historically in Oklahoma, a lawyer has been permitted to combine the dual responsibility of executor and attorney for the estate. The Oklahoma Supreme Court in In Re: Wah-Kon-Tah-He-Ump-Ah's Estate, 128 Okla. 179, 261 P. 973 (1927), held that an executor of an estate, even though he was an attorney had the right to employ counsel, if necessity is shown. The Court stated:

"We have found no decision nor statute which denies the authority of an executor to employ counsel where the circumstances make the services of a lawyer necessary. An executor who is not a lawyer having authority to employ an attorney in case of necessity, it would reasonably follow that, though he was a lawyer .... still in case of necessity he would be authorized to employ assistant counsel. The question of necessity is one of fact."

Although the case did not involve an executor serving in a dual role, the Court said:

"Besides we find no provision of statute which expressly makes it mandatory on an executor to give his professional services to the administration of an estate, in addition to the ordinary duties of an executor or administrator, without additional compensation."

As long as the attorney serving in both positions complies with the Code of Professional Responsibility, the Committee is of the opinion that it is permissible. The Committee recommends that the attorney serving in both positions review the Ethical Considerations and Disciplinary Rules under Canon 5:

"A lawyer should exercise independent professional judgment on behalf of a client" and Canon 9: "A lawyer should avoid even the appearance of professional impropriety." If a conflict should arise when the attorney is serving in the dual role, he must withdraw from representing the estate, as provided for in the Code.

INQUIRY NO. 2

The answer to Inquiry No. 2 is in the affirmative for the reasons set out below:

In order to qualify as an executor of an estate, it is not necessary to be an attorney and be licensed to practice law in the State of Oklahoma. There is no duty on the executor of an estate to perform legal services; therefore, there is no duty on an attorney to represent the estate wherein he acts as the executor. It follows that, if the executor performs duties, which are not within those required of him, he should be compensated for those extra duties.

58 O.S.1971, §527 provides for the compensation of an executor and allows the court to order reasonable payments for any extraordinary services provided the estate. If it is necessary to hire an attorney to represent the estate, it is proper to pay fees out of the estate to compensate him for services rendered. (In Re: Wah-Kon-Tah-He-Ump-Ah's Estate, supra). In the case of Armstrong v. Martin, 203 Okla. 565, 223 P.2d 1072 (1950), although a guardianship proceeding, the Court held that it was proper for an attorney-guardian to hire an attorney to recover land for the ward and that it was proper to pay a fee out of the estate to that attorney.

Since it is proper to pay the attorney's fee out of the estate, it is proper for the executor who serves as the attorney of the estate to be paid an executor's fee and an attorney's fee.

An attorney serving in both an attorney position and a non-attorney position must comply with the Code of Professional Responsibility while serving in both and set fees which are not unreasonable. See OBA Opinion No. 274, 44 O.B.J. 2157 (1973).

In determining the amount of the fee a person serving as executor and attorney may set, it is necessary to determine that the fee is not clearly excessive and, in doing that, the attorney must determine whether a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee, as provided by DR 2-106(B). ABA Informal Opinion 1338 (1975) requires the attorney reviewing the fee be assessed the estate, consider both the attorney and executor's fee in determining what is reasonable compensation. The Opinion concluded that it would not be a violation of DR 2-106, if the lawyer's fee and executor's fee, when considered together, are not clearly excessive, taking into account all of the services performed and the responsibilities assumed in both these capacities.

The attorney serving in both positions must not double charge for services rendered. The Committee recommends that the attorney take note of Weaver vs. Laub, 574 P.2d 609 (Okla.1977). That case involved an attorney who represented himself and an executrix in a partition action. The Court set down guidelines for the attorney to follow in requesting attorney's fees in representing himself and assessing attorney's fee for representing the executrix. These guidelines will assist the attorney in determining the proper fees to be set in both instances.

It is, therefore, the opinion of the Committee that an attorney may serve in the dual capacity of executor for an estate and attorney for the estate. A person serving in both positions may properly be awarded a fee for services rendered in each position. In determining the reasonable attorney's fees that can be assessed, the attorney must take into consideration the total fee for both positions, taking into account all the services performed and responsibilities assumed in those two positions. Finally, as an additional safeguard, it would be highly desirable for both the executor's and attorney's fees to be approved by the court having jurisdiction over the administration proceedings.