Opinion 92-17
(September 1992)

Several years ago the heirs of a decedent who died without a will asked that you represent them in settling the decedent's estate. You referred them to another lawyer who happened to be a tenant in your office building. You made no representations to either the heirs or to the other lawyer that you would remain involved and you did not suggest there would be a referral fee.

Although the lawyer assumed the representation and did some initial work on the estate, he subsequently advised the heirs that he no longer wished to handle the case. The heirs have had difficulty contacting the lawyer since they initially retained him. At their request, you attempted to contact him but found his phone to be disconnected, and he has made no attempt to respond to your inquiries. You have also received a copy of the status report form filed with the Register of Wills pursuant to Supreme Court Orphans' Court Rule 6.12 in which he or someone else inserted your name as the responsible attorney.

You have notified the heirs and the Register of Wills that you have never had anything to do with the estate and do not wish to be held responsible for what has happened. You have also asked what, if any, other steps you should take to protect yourself.

DISCUSSION

Once you have both (1) corrected the records of the Register of Wills that improperly noted you as the lawyer responsible for the estate, and (2) advised the heirs in writing that you do not represent them, we believe you need take no further action.

Pennsylvania's Rules of Professional Conduct, specifically Sec.3.3(a) (1), provide as follows:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal.

Pennsylvania Bar Association Opinion 92-69 holds that a Register of Wills is a tribunal for purposes of disclosure for purposes of Rule 3.3(a) (1). Accordingly, in view of your knowledge of a misrepresentation of what could be a material fact, it is your obligation to be certain that the Register of Wills is aware that you are not responsible for the estate.

You should also be mindful of Rule 1.16(d), pertaining to terminating representation, which provides as follows:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, [etc.].

Although the facts as you state them do not lead us to believe that you had ever accepted any responsibility for the estate, the heirs apparently perceive otherwise. Accordingly, you should advise the heirs in writing as soon as possible that you do not represent them and that it is necessary for them to obtain new counsel to protect their interests.

Finally, Pennsylvania Rule of Professional Conduct 8.3 addresses your responsibility to report misconduct of another attorney provided you do not have to violate client confidentiality (Rule 1.6) in so doing, and provided you conclude that the conduct raises a substantial question about the attorney's fitness to practice law. Should you feel that the attorney's conduct does not rise to the standard in the rule, you have no obligation to report the conduct.

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.