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)


  1. Under our Rules of Professional Conduct, is an attorney-fiduciary prohibited from acting as the attorney for the estate, trust, etc?
  2. What ethical mandates are to be considered by any attorney who contemplates acting as an attorney-fiduciary?
  3. 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?

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