Professional Guidance Committee
After a will contest was settled, an orphans court judge issued an adjudication awarding estate assets to the named legatees who were represented by counsel in the contest. As counsel for the executor, you have sent satisfaction of award forms to the legatees' counsel for execution and return prior to making distribution of the awards. Notwithstanding your numerous efforts to contact legatees' counsel over the past three years, he has not responded. Presently, you are holding the funds in escrow. You ask if you may communicate directly with the legatees notwithstanding the usual prohibition of Pennsylvania Rule of Professional Conduct 4.2 against contacting an opposing party represented by counsel.
The Committee notes that the circumstances of the inquiry raise a substantial question whether the legatees' counsel still represents them. In addition, the law in Pennsylvania imposes upon counsel for the executor certain derivative duties with respect to beneficiaries of an estate. Those duties impose in some circumstances obligations that place such counsel in the shoes of the fiduciary. Although it is not within the purview of this Committee to provide substantive legal advice, the existence of those duties underscores the obligation of counsel for an executor to make every effort to both locate legatees and be certain that they receive awards made to them by an orphans court.
The Committee concludes you should notify counsel for the legatees, via letter, sent certified mail, return receipt requested, that if you do not receive the signed satisfaction instruments by a date certain, you will file an appropriate motion with the court, requesting that the court either allow you to deposit the settlement funds with the court at which time the court will order the awards satisfied, or in the alternative, order you to forward the funds directly to the legatees, and upon proof of so doing, mark the prior awards satisfied. Should the legatees' counsel not respond by the date certain in your letter, you should then immediately file the motion with the court as described. In addition the Committee notes that once the motion is filed, the orphans court may also make a determination as to whether the legatees' counsel does in fact still represent them, a determination which may be of some assistance in the future should the inquirer have further need to contact the legatees.
The foregoing opinion is advisory only and is based upon the facts set forth above. This opinion is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any court. It carries only such weight as an appropriate reviewing authority may choose to give it.