Opinion 95-1
(February 1995)
 
Within the last year, you were asked to represent an executor in the termination of the administration of six old estates, one of which may be almost 35 years old. The executor, a Pennsylvania lawyer, has been representing himself throughout the administration of these estates. You are convinced that the lawyer is mentally incapacitated and have found that his family will not initiate any proceedings to have him formally adjudicated an incapacitated person and to have a guardian appointed for his estate. You have asked what your responsibilities are under the Rules of Professional Conduct with respect to the estates, five of which have balances of less than $1,000 and one of which has a balance of approximately $20,000.
 
You have specifically asked whether you could: (1) Return the files, and advise the family of the impossibility of preparing suitable accounts, or (2) attempt to inform the legatees in writing of the status of the estates.
 
There appears to be three steps you could take pursuant to Rules of Professional Conduct. You could withdraw from the representation of the executor, pursuant to Rule 1.16, and return the files to the client. Your continued representation of the client under these circumstances could result in a violation of the Rules of Professional Conduct because the client can neither give you appropriate guidance nor respond appropriately to your advice.
 
You could also work with the family and seek the appointment of a guardian or take other protective action with respect to the client pursuant to Rule 1.14 because it has become clear to you that your client is not able to adequately consider decisions in connection with the representation due to his mental disability. Technically, no one is authorized to sign any checks to complete the distribution of the assets. Only a successor personal representative or someone pursuant to a special court order, will be able to complete the administration of the estates. Under the law, a petitioner for an adjudication of incapacity, may be any person interested in the alleged incapacitated person's welfare. 20 Pa. Con. Stat. ยง5511(a).
 
A third course of action, although a remote possibility, is your notifying the legatees of the status of the administration of the estates. The effect would be to put the burden on them to seek the removal of your client as the personal representative and the appointment of a successor personal representative or a special order of court permitting a court-designated person to make distribution of the balance of the estates which may well be reserve funds held for many years.
 
In general, though, Rule 1.6, pertaining to confidentiality of information, prohibits a lawyer from revealing to others information that is adverse to the client. There are only two exceptions to that Rule, neither of which appears to be applicable here. Rule 1.6(b), requires a lawyer to reveal information necessary to comply with Rule 3.3, pertaining to candor toward a tribunal. It appears that your client is not in front of, nor is obligated to report to, either the Register of Wills or the Orphans' Court in the course of your representation. Rule 1.6(c)(1), permits revealing information to the extent you reasonably believe necessary to prevent your client from committing criminal or fraudulent acts. That does not seem to be the case here, either.
 
In some jurisdictions, your representation would be deemed to encompass the estate as a whole, including the legatees, not just the executor. If that were the case in Pennsylvania, you might have an obligation to notify the legatees of the problem. In our opinion, the case law in Pennsylvania does not support that broadened view of your representation, and, as noted above, the circumstances seem to prohibit your voluntarily doing so.

   

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.