Legal Ethics Opinion 1487

Limiting Liability to Client: Attorney/Executor Securing Release
From Liability From Non-Client Beneficiary

You have presented a hypothetical situation in which Lawyer A is
the executor of an estate.  A suit is filed by the widow of the
testator, who is also a beneficiary, claiming that other
individuals, not including Lawyer A, subjected the testator to
undue influence and that the testator lacked testamentary
capacity.  As the executor, however, Lawyer A is a named
defendant in the devisavit vel non suit.  At no time has Lawyer A
ever had an attorney-client relationship with the widow.

You further indicate that the lawsuit is later settled, and
Lawyer A seeks to obtain a release from the widow, releasing him
from any and all claims that she may have had against him,
including but not limited to "any claims connected with or
related in any way to (i) the performance of his duties as
executor, (ii) the will [which is the subject of the suit], or
(iii) any preceding will."  Finally, you indicate that Lawyer A
paid nothing in connection with the settlement of the suit, as
payment was made by other defendants.

You have asked the committee to opine whether, under the facts of
the inquiry, the executor of an estate, who is also an attorney,
is precluded from obtaining a general release from a beneficiary
in connection with the settlement of a suit brought by the
beneficiary when the executor has never had an attorney-client
relationship with the beneficiary.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 6-102(A) which provides that a lawyer shall not
limit his liability to his client for his personal malpractice.  

The question of whether an attorney-client relationship existed
between the attorney/executor and the beneficiary requires a
factual determination beyond the purview of the committee. 
However, should a determination be made that such a relationship
did exist, the committee is of the opinion that a general release
from liability such as you have described would be per seimproper under the mandate of DR 6-lmmittee is of the view that
nothing in the Code of Professional Responsibility prohibits the
executor from securing such a general release, although the
questions of the beneficiary's refusal to execute the release or
the enforceability of such a release raise legal questions which
the committee is unable to address.  In any case, however, the
committee is of the opinion that such a general release is not
good practice and does not follow the spirit of the relevant
Disciplinary Rule.

In addition, the committee cautions that it has previously opined
that when an attorney assumes the responsibility of acting as a
fiduciary and violates his or her duty in a manner that would
justify disciplinary action had the relationship been that of
attorney-client, the attorney may be properly disciplined
pursuant to the Code of Professional Responsibility.  See LEOs
#1325, #1442.

Committee Opinion
November 16, 1992