Ethics Opinion No. 678 (Sept. 2018).
The Professional Ethics Committee for the State Bar
of Texas has clarified the ethical rules which apply when the same
person serves as both the executor and the attorney for the executor:
Under the Texas Disciplinary Rules of Professional
Conduct, a lawyer is not prohibited from serving as both executor and as
counsel for the executor; however, the lawyer must evaluate whether
there are conflicts of interests before and during the representation
including any arising from the lawyer serving in the dual roles. If the
representation of the executor will be adversely affected by the
lawyer’s or law firm’s own interests, then the lawyer may not serve as
counsel for the executor unless the lawyer can obtain the consent
required under the Texas Disciplinary Rules of Professional Conduct. If
a lawyer cannot serve as counsel for the executor because of such a
conflict, the other lawyers in the lawyer’s law firm are also prohibited
from representing the executor. Finally, additional limitations can
arise if the lawyer, serving as executor, should or may be a witness in
a probate or other legal proceeding related to the estate, which
limitations may affect whether the lawyer can be both a fact witness and
an advocate before a tribunal in the same proceeding.
Moral: Although this opinion authorizes the
same person to serve as the executor and the attorney for the executor
under proper circumstances, prudent practice would be, IMHO, to avoid
dual roles.