Ethics Committee Formal Opinion #1987/8-9
September 15, 1988
Subject to significant ethical restraints and concerns, an attorney may act as a fiduciary, and may charge for fees rendered in both capacities, when the transaction is fair and equitable to the client. (Rules 1.7; 1.8(a); 1.8(c))
There is an immediate duty of disclosure to the client if an attorney may become a fiduciary, as to the various duties of a fiduciary and the fee generation and fee charging of the attorney-fiduciary. (Rules 1.4; 1.4(a); 1.4(b))
An attorney may not represent a client if named as a fiduciary in a will or trust, unless the representation will not be adversely affected, and the client consents after consultation and with knowledge of the consequences. (Rules 1.7; 1.7(b); 1.8(a))
The lawyer must insure that, in acting as fiduciary-attorney, he or she can at all times continue to exercise independent professional judgment and render candid advice. (Rule 2.1)
A fiduciary-attorney cannot charge or collect an illegal or clearly excessive fee. (Rules 1.5; 1.5(a))
Legal fees charged by a fiduciary-attorney, are subject to ethical restraints and considerations, as well as where required, judicial review and approval. (Rule 1.5)
- Under our Rules of Professional Conduct, is an attorney-fiduciary prohibited from acting as the attorney for the estate, trust, etc?
- What ethical mandates are to be considered by any attorney who contemplates acting as an attorney-fiduciary?
- What, if any, ethical constraints or considerations are imposed upon an attorney-fiduciary in the manner in which fees are charged against the estate or trust?