92-01 : Lawyers Acting Simultaneously as Personal Representative and Lawyer for the Estate

Where a lawyer is acting as the executor or administrator of an estate, and at the same time is performing the legal services that would normally be performed by the lawyer retained to act for the estate, then all funds deriving from the estate must be treated as client trust funds and dealt with accordingly as required by the Society’s financial accountability rules.

However, a lawyer acting solely in a representative capacity, as defined by rule 5-49(1), cannot deposit the fiduciary property in a member or firm’s trust account.

A lawyer who was initially acting in a dual capacity and providing legal services which are now concluded must remove any remaining related money from the trust account as the funds are now fiduciary property as defined in rule 5-41. Such funds should be deposited to an estate account. In addition, there are reporting and recordkeeping obligations triggered at this time, as required by rules 5-49(3), 5-49(4) and 5-50(1)(b).