OPINION 269
October 1963

CONFLICT OF INTEREST—If it is permitted by substantive Texas law, it is not unethical for a member to collect commissions as the Executor named in a will and also a fee as an attorney for the estate for legal services rendered outside the scope of his duties as Executor; however, it would be unethical for the Executor to make the final decision as to the amount he is to pay himself for an attorney's fee.

Canon 6.

Question

Lawyer X and another were appointed Independent Executors and Trustees of minor beneficiaries under a will.

The Executors employed an independent law firm to probate the will in response to an expressed desire of the Testator that such firm be consulted.

Later, the beneficiaries' Mother (who was also the daughter of the Testator) filed an action in district court to construe the will. The Executor employed another law firm (that is, other than the firm probating the will) to defend the action brought to construe the will.

Lawyer X assisted both in bringing about a settlement of the action to construe the will and in handling the probate.

The question is: Is it ethical, or does it violate the canons of ethics, for Lawyer X to collect commissions as an Executor and also to collect attorney's fees for legal services (apart from his acts as Executor)?

Opinion

This basically is not a conflicting interest situation, for Lawyer X's interests as Executor and in rendering legal services as a lawyer were in furtherance of the rights of the estate. The question asked is whether he may collect commissions as Executor and also a fee as an attorney for the estate for legal services rendered outside the scope of his duties as Executor. This is a question of substantive Texas law. Insofar as ethics are concerned, the answer is that, if the law does not permit it, it is unethical to collect both commissions and a fee; but, if the law does permit it, it is ethical to collect both the commission and a fee. It has been said previously to be ethical; see Opinion 182.

In determining the amount of the attorney's fee, a conflict of interest does arise since X as Executor is to set the fee of X as an attorney. Normally the solution is easy where all beneficiaries are adults and agree to the fee, for this is merely the usual divergence of interests when an attorney and a client must agree upon a fee. Here, where the beneficiaries are (at least in part) minors and cannot agree on the fee of the attorney, there is the same conflict in the fixing of the amount of the fee, not in the fee per se, but it does not lend itself to the same easy solution. This would make an excessive fee unethical, and X should not make the final decision. Surely there is some method whereby the fee can be fixed by a court or approved by a court so that the size of the fee can be determined other than by the sole judgment of X. (9-0.)