2003-2.

• Case Date: March 14, 2003
• Court: Alaska

Alaska Ethics Opinion 2003. 2003-2. ALASKA BAR ASSOCIATIONETHICS OPINION NO. 2003-2Responsibilities of the Attorney Representing the Personal Representative of an Estate When the Personal Representative is Engaging in Fraudulent or Criminal Conduct Question Presented The Committee has been asked whether a personal representative's attorney has an ethical duty to disclose the personal representative's criminal or fraudulent conduct to the court and/or the beneficiaries of the estate in light of the adoption of the Alaska Rules of Professional Conduct (ARPC) in 1993 and the Alaska Supreme Court opinion in the Matter of Estate of Brandon, 902 P.2d 1299 (Alaska 1995). The Committee concludes that the personal representative's attorney may disclose the personal representative's fraudulent or criminal conduct to the court or beneficiaries under ARPC 1.6(b)(1), but is not required to do so. Ethics Opinion 91-2 (Responsibilities of Attorney Representing Personal Representative of Estate When a Conflict Exists Between the Personal Representative and the Heirs of the Estate) is modified to reflect the permission to disclose a client's fraudulent or criminal conduct as set forth in ARPC 1.6(b)(1) .1 Analysis a. Ethics Opinion 91-2 The view in the majority of jurisdictions is that the attorney for a personal representative in a probate matter represents the personal representative in his or her capacity as personal representative, not the estate as an entity nor the individual beneficiaries of the estate.2 Ethics Opinion 91-2 adopted the majority view.3 Ethics Opinion 91-2 went on to conclude that the personal representative's status as a fiduciary does not change the personal representative's entitlement to the same protections and loyalty to which every client is entitled: The opinions discussing the prohibition against disclosure of information adverse to the personal representative make it clear that a personal representative is entitled to the same protections and loyalty as any other client, notwithstanding the fiduciary relationship to the estate. [Emphasis added.] Ethics Opinion 91-2 at 3. These two key conclusions of Ethics Opinion 91-2 remain valid: (1) when an attorney is retained by a personal representative, the attorney's client is the individual serving as personal representative, not the estate, and (2) the client's fiduciary status as a personal representative does not change the client's entitlement to the protections and loyalty due to all clients. 4 b. Impact of Adoption of Alaska's Model Rules ARPC 1.6...