In the course of probating an estate, the attorney for the estate will come in contact with many different parties. The attorney’s duty to those parties is complicated. There is no single source of law that governs the conduct of the attorney and sometimes the law is not particularly helpful. This presentation will review the duties of the attorney representing the personal representative and communications with various parties in a decedent’s estate.

I. Performing Competent Legal Services

KRPC 1.1, An attorney is expected to be competent in the area of representation. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.

• In re the Matter of David R. Alig, 285 Kan. 117, 169 P.3d 690 (2007).

Mr. Alig was retained as counsel for an estate filed in Johnson County, Kansas. At the time of the death the estate was estimated to be worth approximately $4,000,000. The estate consisted of real estate, corporate stock, partnership interests, and promissory notes. There was trust property, joint tenancy property, and probate estate property, in both Kansas and Missouri. Portions of the estate were contested. The estate was opened in 2001 and closed in 2005. At times during the estate administration Mr. Alig was suspended from practice for failure to complete continuing legal education and to pay continuing legal education annual fees. Prior to this case Mr. Alig had very little previous probate experience. When the estate was closed in 2005, the district judge made a referral to the Disciplinary Administrator. Among other violations, the court found Mr. Alig to have violated rule 1.1.

• In re Evans, 285 Kan. 147 (2007)

Mr. Evans had an active real estate practice in Washington, D.C., he also operated a title company, and mortgage lending company. Z. Robinson died in 1987, leaving two sons, Maurice and Clifton, and owning real property. One of her sons, Maurice died in 1989, leaving a wife and two children. In 1997, Maurice’s widow retained Mr. Evans who opened probate for the estate of Z. Robinson, Mr. Evans took a series of actions including a loan on the property through is own title and mortgage company, but did not open an estate for Maurice Robinson. Among other offences, the court found Mr. Evans violated rule 1.1 Competent representation to clients, “Competent representation requires the legal knowledge, skill, thoroughness, preparation and reasonably necessary for the representation. The respondent failed to competently represent his client when he filed ineffective renunciation statements…, when he permitted Carolyn Robinson to distribute the estate without court approval and he took fees without court approval.”

• How can you avoid violating rule 1.1
  • Kansas Probate and Trust Administration After Death, Kansas Bar Association (7th Edition, 2008).
  • Kansas Judicial Council Probate Forms 2d, Kansas Judicial Council.

II. WHO IS THE CLIENT?

If you are the attorney who prepared the Last Will and Testament, then your original client is dead. If you are contacted by the family, use caution in communications until it is clear whom, if anyone, you will represent in probating the estate.

• Choice of Counsel. The personal representative may select his own attorney. See, In re Estate of Adams, 237 Kan. 556 (1985) and In re Estate of Weaver, 214 Kan. 550 (1974), “Under Kansas law it is the sole province and responsibility of the fiduciary to choose and employ his own attorney.”
• Who do you represent? If you are retained by the personal representative then who do you represent. Do you represent the estate? Probably not, the estate is not an entity in the same way a corporation or partnership is an entity. In Kansas the law seems to be that when representing an estate the attorney is representing the personal representative in his fiduciary capacity to the estate. Matter of Murdock’s Estate, 220 Kan. 459 (1976).

III. AVOIDING CONFLICTS OF INTEREST

• The personal representative is a fiduciary. In re Estate of Hesenflow, 21 Kan. App. 2d 761 (1996) at 776. There may be a potential conflict if the personal representative is a creditor of the estate or if there are disputes among the heirs. Kansas law seems clear that if there is a conflict then the duty of the personal representative and​ the attorney who represents him is to the estate, not any of the heirs. In re Tax Appeal of Kerschen, 12 Kan. App.2d 370 (1989).
• Ethical Duty to the Heirs and Beneficiaries. There are no Kansas cases for guidance on this issue. The beneficiary is not the attorney’s client so there is no direct ethical duty, except perhaps to ensure that the fiduciary is informed of and properly carries out his fiduciary duties to the beneficiaries.
• Engagement letter with the personal representative should set out this unusual relationship and the potential for conflict. Often the client will see you as his personal attorney, it is the responsibility of the attorney to explain the personal representative this important difference.

IV. DISTINGUISHING BETWEEN PRIVILEGED AND NON-PRIVILEGED COMMUNICATION.

• Legal Duty to Third-Party who is not a client. If you represent the personal representative, he is likely an heir. His family are also likely heirs, but they are not your clients. Kansas law provides a three part analysis for communications with third parties. Johnson V. Wiegels, 30 Kan. App. 2d 672 (2002).
  • If the third party is adverse to the client there is no duty.
  • If the attorney and the client never intended the attorneys work to benefit the third party, likewise there is no duty to the third party.
  • If the attorney and the client intended to benefit the third party, then the court may impose a duty based on the circumstances. See also, Pizel v Zuspann, 247, Kan 699, 803 P.2d 205 (1990). In estate administration, this step is almost always satisfied.
• Communication with the Heirs and Beneficiaries. Heirs and Beneficiaries are not usually adverse parties and typically communicating with them is not an issue. The attorney can feel comfortable communicating with them about probate procedure. It is important to be clear to the beneficiary that you do not represent them and if they need legal advice they should retain their own counsel. There are rules which discuss disclosures to non-clients.
  • K.S.A. 60-426, Attorney-Client Privilege. This is an evidentiary rule that governs when an attorney is required to disclose information as a witness.
  • Kansas Rule of Profession Conduct 1.6, deals with confidentiality. Generally an attorney may not disclose any information gained in the course of representation.
  • KRPC 1.6(a), discussed impliedly authorized disclosures. There is an exception to 1.6 when necessary to carry out the representation. There are no Kansas cases on this issue in a probate proceeding, but if you are retained to probate an estate it is essential that you communicate with the heirs
• Communications with Other Concerned Parties.
  • Represented Parties. KRPC 4.2 limits contact of the attorney with persons who are represented. If other parties are represented you may not contact them directly without the permission of their attorney.
  • Unrepresented Persons.
    • Be careful not to create a de facto attorney client relationship, See KRPC 4.3 Be clear that you represent the estate and not the heir or creditor or whomever you may be communicating with.
    • Candor to third parties. KRPC 1.4 generally requires that an attorney not lie to others, even to advance the client’s interest. See In the Matter of Frederick, 263 Kan. 210, 946 P.2d 1002 (1997). Mr. Frederick was the estate planner for Mr. and Mrs. Irwin, who both had entered a nursing home and were on Medicaid. Mr. Frederick prepared a deed showing Mr. and Mrs. Irwin sold property in January 1995, however, no buyer was listed. Mrs. Irwin then died. A buyer was found in June of 1995. The buyer was then added to the deed which was filed by Mr. Frederick. SRS (now DCF) became involved and discovered Mr. Frederick’s deception. Mr. Frederick received a public censure.
    • Candor to a tribunal. KRPC 3.3 (a), A lawyer shall not knowingly:
      • make a false statement to a tribunal;
      • fail to disclose a material fact to a tribunal…
      • fail to disclose…legal authority…
      • offer evidence that a lawyer knows is false….
    • Remember to protect your client’s confidences. KRPC 1.6: An attorney shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.

V. ESTABLISHING REASONABLE ATTORNEYS FEES.

• K.S.A. 59-1717, Every fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorney as shall be just and reasonable. At any time during administration the fiduciary may apply to the court for an allowance upon his or her compensation and upon attorneys’ fees.
• KRPC 1.5 Client – Lawyer Relationship: Fees
  • A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
    • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
    • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
    • the fee customarily charged in the locality for similar legal services;
    • the amount involved and the results obtained;
    • the time limitations imposed by the client or by the circumstances;
    • the nature and length of the professional relationship with the
    • the experience, reputation, and ability of the lawyer or lawyers
    • performing the services; and
    • whether the fee is fixed or contingent.
  • When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
  • A lawyer’s fee shall be reasonable but a court determination that a fee is not reasonable shall not be presumptive evidence of a violation that requires discipline of the attorney.
  • A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (f) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. All such expenses shall be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the client’s share and amount and the method of its determination. The statement shall advise the client of the right to have the fee reviewed as provided in subsection (e).
  • Upon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable. If the court finds the contract is not reasonable, it shall set and allow a reasonable fee.
  • A lawyer shall not enter into an arrangement for, charge, or collect:
    • Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony, support, or property settlement; or
    • a contingent fee for representing a defendant in a criminal case; or
    • a contingent fee in any other matter in which such a fee is precluded by statute.
  • A division of fee which may include a portion designated for referral of a matter, between or among lawyers who are not in the same firm may be made if the total fee is reasonable and the client is advised of and does not object to the division.
  • This rule does not prohibit payments to former partners or associates or their estates pursuant to a separation or retirement agreement.”2013 Kan. Ct. R. Annot. 503.
• Case Law.
  • In Re Alig, Mr. Alig served as attorney for the estate from late 2001 to early 2005, some of this time he was suspended from practice. He did meet with the heirs and there was agreement, but not written, that he would charge an hourly rate of $175 for his time and $85 for his paralegal time. He was paid nearly $100,000 for work from 2001 to 2005. Mr. Alig stipulated that his fees were unreasonable, so the court found he violated KPRC 1.5 (a). The court found that because Mr. Alig did not seek approval of his fee under K.S.A. 59-1717 (even at the point of the hearing on the disciplinary complaint), Mr. Alig had not petitioned for approval of his fees thus violating KRPC 8.4(d), it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Mr. Alig was publically censured.
  • In re Evans, in this case Mr. Evans received his fees out of the closing of the loan on the property that was the subject of the probate estate, a loan arranged by his mortgage company and handled by his closing company. His fee was not approved by the court. The court again found a violation of 8.4 (d) regarding the fee. The court found other violations including dishonesty. Mr. Evans was indefinitely suspended

By Stacey L. Janssen of Dysart Taylor