State Bar of South Dakota

Ethics Opinion 86-1


You have inquired of the Committee: 

1. Whether an attorney acting as agent of an estate under Court appointment and who has commenced civil proceedings against a former agent should report a possible felony of the former agent to the State’s Attorney? 

2. Whether as attorney of a creditor, and with Court appointment as agent for the estate, and in collecting and distributing assets of the estate, a conflict of interest exists? 

In response to your first question, a clear indication of the former agent having committed a felony should be reported to the State’s Attorney and no ethical problem exists under the circumstances presented here. There should be reasonable grounds evident that a felony appears to have been committed. 

In response to your second question, on the assumption the Court has appointed you as agent for the estate, and that your client creditor is fully aware you are obligated to the Court and all creditors in your capacity as agent, and no favoritism is given to your client creditor, there is no ethical problem. It is presumed the Court will see to the proper administration of the estate by its appointment. Any appearance of impropriety by your acting as attorney for a creditor and agent for the estate is presumed to be overcome by your Court appointment as agent and your primary obligation to the Court and all creditors to the estate in this opinion. 

Carl W. Quist
Chair, Ethics Committee