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OBA Ethics Counsel

Ethics Opinion No. 81

Adopted December 27, 1934

The Board of Governors is in receipt of a request for an advisory opinion from a member of the State Bar as follows:

"We are employed by a person, designated as "A" who claims an unliquidated demand against the estate of "B" deceased. Some nine or ten days prior to the death of "B" said decedent conveyed all of his property, which consisted of a homestead, to "C" in consideration of future care and support. "A's" claim against the estate is for personal services rendered decedent during his lifetime. If the property conveyed is returned to the estate and the conveyance cancelled, it can, notwithstanding its homestead character, be applied through the processes of the Probate Court in the satisfaction of "A's" claim. The value of the property is probably in excess of "A's" claim so that, in such event, there will remain a residue for distribution to the heirs of the decedent, "B". All such heirs are either not interested or hostile to the proposed proceedings to cancel such conveyance."

"At the employment of "A" we procured the appointment of an administrator of the estate of "B" for the purpose of canceling the deed made to "C". The claim of our client "A" will be presented to the administrator and the county judge for approval and allowance. If disallowed, a suit against the estate will be instituted thereon and maintained to conclusion in the event of the recovery of the property."

"QUERIES: (1) Is it permissible for us to represent the administrator in a suit to set aside the conveyance and recover the property for the estate? (2) If so, in the event of a cancellation of the conveyance and a recovery of the property, is it proper for us to charge compensation against the estate? (a) at all events. (b) in case the claim of "A" against the estate is not sustained? (c) in case the claim of "A" against the estate is sustained but only as to excess that might come to the heirs?"

In response:

(1) Since a creditor is one of the persons entitled to apply for Letters of Administration under the Code and since you procured the appointment of an administrator in this case in the exercise of your client's right to have such an appointment made, there is no impropriety in your accepting employment from the administrator to cancel the conveyance and recover the property for the estate. A contract for such employment should first be submitted to the County Court and approved.

(2) Query (a) above is answered under the next above response. The contract of employment should contain an agreement for compensation for your services to be paid by the estate.

(2) (b) and (c). Acceptance of employment from the administrator to represent him in any matter save that of procuring his appointment disqualifies you from representation of any person having any sort of a claim or demand against the estate. You cannot, with propriety, represent the administrator in a suit to recover assets for the estate and also represent a claimant against the estate. Therefore, queries (2) (b) and (c) can have no bearing upon the compensation to be paid you by the estate for the recovery of such assets.