representative of a client incident to or as a condition of legal representation; (2) continuing to represent a client if the lawyer's sexual relations with the client or the representative of the client cause the lawyer to render incompetent representation. (m) Except for a spousal relationship or a sexual relationship that existed at the
ANSWER #1: Generally, the lawyer represents the individual that hired him to assist in the administration or probate of the estate. If that person has only one role and is not a fiduciary, the lawyer represents only that person, unless the client and lawyer agree otherwise. If the person is the Personal Representative, the lawyer represents the ...
Alabama Rules of Professional Conduct Client-Lawyer Relationship Rule 1.7. Conflict of Interest: General Rule. (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) The lawyer reasonably believes the representation will not adversely
an attorney, he or she is entitled to receive the attorney’s services before being questioned). Section (b) permits the court to appoint advisory or standby counsel. Although a criminal defendant has an absolute right to defend pro se under Art. I, § 6, Alabama Constitution of 1901, Luckie v. State, 55 Ala.App. 642, 318 So.2d
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The Supreme Court’s holding is supported by various statutes in the Alabama Code of 1975. For instance, § 43-2-682, Ala. Code 1975, which allows a fiduciary or lawyer to be compensated from the assets of the estate, states, in pertinent part, as follows:
The American Bar Association in Formal Opinion 94-380 recognized that the majority view is that the lawyer represents only the Personal Representative or fiduciary of the estate and not the beneficiaries of the estate, either jointly or individually. In reaching a similar conclusion, a number of other state bar associations have relied, in part, on state law that indicated that an estate is not a separate legal entity. In Ethics Opinion No. 91-2, the Alaska State Bar noted that an estate is “for probate purposes a collection of assets rather than an organization, and is not an entity involved in the probate proceedings.” In Formal Opinion 1989-4, the Delaware State Bar also concluded that under state law, the term “estate” only referred to the actual property of the decedent and did not have an independent legal existence. As such, the Delaware State Bar concluded that the estate could not be a “client” under their rules of professional conduct.
The Office of General Counsel frequently receives telephone calls from lawyers requesting ethics opinions concerning the representation of an estate. In explaining the ethical dilemma the lawyer is facing, the lawyer often refers to himself as “representing the estate”. The lawyer then goes on to describe a situation in which the interests of the estate or the fiduciary for the estate or a beneficiary may be in conflict. Oftentimes, whether a conflict of interest exists is entirely dependent on who the lawyer actually represents in regard to the estate. Additionally, the Bar sometimes receives complaints filed against the lawyer by the beneficiaries of the estate or the fiduciary of the estate. In those cases, identifying the true client will often determine whether the lawyer has breached any ethical duties. As a result, defining the lawyer’s actual client in an estate or probate matter is critical in determining whether a conflict of interest may exist and what duties a lawyer owes to the fiduciary and beneficiaries of the estate.
217 Cal. App. P.3d 1258, 1268 (1990). Likewise, other state courts have also determined that a lawyer’s only client is the fiduciary of the estate. See, Huie v. DeShazo, 922 S.W. 2d 920 (Tex. 1996); The Estate of Fogelman v. Fegen, 3 P.3d 1172 (Ariz. 2000); In re Estate of Wagner, 386 N.W.2d 448, 450 (Neb. 1986).
Therefore, the lawyer could not disclose the executrix’s apparent fraud to the beneficiaries or the court.
After considering the above-discussed cases, state bar opinions, and other state cases, it is the opinion of the Disciplinary Commission that ordinarily, when a lawyer is hired by a Personal Representative to assist in the administration of an estate, the lawyer ’s sole client is the Personal Representative of the estate. As a result, the lawyer would owe the Personal Representative a duty of loyalty and confidentiality just as he would any other client pursuant to Rule 1.6, Ala. R. Prof. C. The fact that the Personal Representative has obligations to the beneficiaries of the estate does not in itself either expand or limit the lawyer’ s obligations to the Personal Representative under the Rules, nor would it impose on the lawyer obligations toward the beneficiaries that the lawyer would not have toward other third parties.
However, the preamble to the Alabama Code of Ethics for Arbitrators also states that all provisions of the Code should be read in conjunction with applicable law. In addition, Rule 26 of the American Arbitration Association Commercial Arbitration Rules and Mediation Procedures states that a party may be represented by “any other representative ...
Moreover, a lawyer has an obligation to bring the matter of the non-lawyer’s representation of a party to the attention of the arbitrator and where appropriate, to the attention of the court. DISCUSSION:
(a) A lawyer shall not: (1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or. (2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
Rather, Rule 5.5 is, in part, a multi-jurisdictional practice rule that expressly allows attorneys licensed in other states to represent parties in arbitrations taking place in Alabama. In doing so, it does not expressly allow non-lawyers to represent parties in arbitration. Obviously, if a state or federal statute or law specifically allows ...
May a non-lawyer represent a party in a court-ordered arbitration proceeding in Alabama? ANSWER: No, absent a federal or state statute allowing such, the representation of a party by a non-lawyer in a court-ordered arbitration proceeding in Alabama would constitute the unauthorized practice of law. Moreover, a lawyer has an obligation to bring ...
It is the opinion of the Disciplinary Commission that under section (b) (1) of the UPL statute a non-lawyer may not represent a party during a arbitration absent an express federal or state statute or law allow for such. A non-lawyer representative would be making an appearance in a representative capacity. Moreover, it is presumed that during the arbitration, the non-lawyer representative would be introducing exhibits, conducting examination of witnesses, including expert witnesses, objecting to exhibits and making legal arguments on behalf of the party and/or providing legal advice to the party. Such activities generally require the skill and judgment of a licensed attorney and under the UPL statute constitutes the practice of law.
However, the Disciplinary Commission is unaware of any Alabama Supreme Court opinion that addresses whether representation of a party during an arbitration proceeding would constitute the unauthorized practice of law. The Disciplinary Commission is also unaware of any law or statute that expressly permits or prohibits the representation ...
You are responsible for handling the estate in the best interest of all concerned. What this looks like depends on the circumstances. What might be okay in one situation can get you into trouble in other circumstances.
But if the decision is made with the intent to deprive one of the heirs of that asset, the personal representative will still be liable for breach of his or her fiduciary duty. All decisions must be in the best interest of the parties involved.
RULE 3.3 CANDOR TOWARD THE TRIBUNAL. (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or.
As discussed earlier, there are three general categories of unbundled legal services: consultation and advice; limited representation in court; and, document preparation. Under the first two categories, disclosure to the court of the lawyer’s involvement is not required or will otherwise be readily apparent to the court. Generally, whether an individual has sought the advice of an attorney is protected by the attorney-client privilege and Rule 1.6 of the Alabama Rules of Professional Conduct. As such, a lawyer who merely provides advice to a client appearing pro se is not required to disclose to the court or the opposing party his consultation with the client. Where a lawyer makes a limited notice of appearance on behalf of a client, the lawyer should simply advise the court and opposing party of the nature of his limited appearance.
The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose.
As such, a lawyer may participate in the “unbundling” of legal services. Ordinarily, a lawyer is not required to disclose to the court that the lawyer has drafted a pleading or other legal document on behalf of a pro se litigant provided the following conditions are met: 1) The lawyer and client have entered into a valid limited scope ...
The American Bar Association then concluded that, absent a law or local court rule requiring disclosure, the fact that a lawyer drafted the legal documents for a pro se litigant is “not material to the merits of the litigation” and does not need to be disclosed to the court. In essence, the American Bar Association held that the duty of candor to the court does not impose an affirmative duty on a lawyer to disclose to the court that he drafted a particular legal document for a client. Moreover, the ABA commented that, more often than not, the fact that a document filed by a pro se litigant was drafted by a lawyer will be readily apparent to the court and opposing party. If either the court or the opposing party believes that whether a document was ghostwritten is a material issue to the litigation, then they may raise the issue with the pro se party.
However, the lawyer is not required to personally identify himself . These states have held that such disclosure is mandated by a duty of candor to the court. In addition, some courts have also held that a lawyer has a duty to disclose to the court the fact that the lawyer has drafted pleadings on behalf of the client.
In essence, the American Bar Association held that the duty of candor to the court does not impose an affirmative duty on a lawyer to disclose to the court that he drafted a particular legal document for a client.
C. Same answer as 3 A, which is to say that the rights of the City of H are subject to interpretation pursuant to the provisions of the attorney’s lien created in §34-3-61.
8. An answer to this question would involve an interpretation of §34-3-61 and is therefore a question of law rather than of ethics and beyond the scope of this opinion.
Attorneys-at-law shall have a lien on all papers and money of their clients in their possession for services rendered to them, in reference thereto , and may retain such papers until said claims are satisfied, and may apply such money to the satisfaction of said claims.
IT IS CONSIDERED AND DETERMINED by the Court that it is appropriate for an attorney in this situation to return the transcript to the defendant.
A lawyer is not required to provide copies of legal analyses to the client unless he has specifically agreed to do so previously, and he is not required to furnish notes, research, and inter-office memoranda which went toward the compilation of the final product unless he has previously agreed to do so.
Provided that the attorney has been compensated by the client for services rendered, the materials in the file that are furnished by or for the client are therefore the client’s property and must be surrendered to the client upon request. It follows that if the attorney chooses to keep a copy of the materials, it must be at his own expense.
In reaching that conclusion, the Disciplinary Commission determined that the conflict of interest that would prevent an attorney from representing a client in a court wherein that attorney serves as a judge is a personal rather than general disqualification.
Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.
The State of Alabama is not a single individual but rather a large and complex entity comprised of many different agencies and departments. In RO-89-115, the Disciplinary Commission previously held that a lawyer or law firm may represent an agency of state government in one matter, while simultaneously representing a client adverse to a different state agency in an unrelated matter. To treat the state as a single individual for the purpose of determining conflicts of interests, would be, in the opinion of the Disciplinary Commission, inappropriate and an overbroad application of Rule 1.10 (a). In the instant matter, the duty of client loyalty and preservation of client confidences are not imperiled by the representation of the state by one member of the firm and the representation of a criminal client in an unrelated matter in a wholly separate jurisdiction by another member of the firm.
A partner or associate of a part-time assistant district attorney may only represent criminal clients in matters in courts not within the jurisdiction of their law partner and that are unrelated to any matter handled by the part-time assistant district attorney. The use of part-time municipal court judges and part-time assistant district attorneys ...
ANSWERS: 1. Pursuant to Rule 1.10, Alabama Rules of Professional Conduct, a partner or associate of a part-time municipal court judge may not represent a client in municipal court regardless of whether their law partner has or may have had any involvement as a part-time municipal court judge. 2. A partner or associate of a part-time assistant ...
It appears to the Disciplinary Commission that the majority of states that have addressed this issue have determined that the disqualification is imputed to other members of the attorney’s firm. The reasoning most often expressed is that a part-time assistant district attorney’s client is the state and that any representation of a client adverse to the state by a part-time assistant district attorney would constitute a conflict of interest under Rule 1.7 (a), Ala. R. Prof. C., which provides as follows: