Representing a trustee who is also a beneficiary, but not the only beneficiary

Charles E. Rounds, Jr.
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In Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estate, 44 ACTEC L. J. 223 (Summer 2019), it is suggested that there are only three possible answers to the question of whether one attorney may ethically represent a trustee (hereinafter “the client”) who is also a beneficiary, but not the only beneficiary: (1) the client must have separate representation for each conflicting role; (2) the client is one person and therefore may be represented by one attorney in all roles; and (3) the lawyer can represent the client in all roles, unless there is an actual conflict that limits the lawyer’s ability to represent the client competently and diligently. But isn’t there a fourth ethically-acceptable option, namely that the client may be represented by one attorney in all roles, conflict or no conflict, provided the other beneficiaries are represented by independent counsel? That having been said, the Uniform Trust Code’s §1005(c) “ultimate repose” feature can land counsel in a conflict that is unresolvable even by resort to the fourth option. This is a topic that is taken up in §7.1.3 of Loring and Rounds: A Trustee’s Handbook (2020), the relevant portions of which are set forth in the Appendix below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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