their right to do, upon retaining the bank's own counsel to probate the will and administer the estate. The justification for doing this is that the executor and trustee, whether it be a bank or trust company or an individual, must assume the responsibility for the work. With the responsibility, of course, must go the right to select the medium through which the acts shall be performed. In making the selection, however, there are conditions to be taken into account which are too often overlooked. If A, an individual, has employed a certain attorney to prepare his will, and if the attorney is a man of high standing in his profession, both as to learning and as to character, and if the attorney had for many years been familiar with the affairs of the testator, it is usually true that the attorney will handle the legal matters pertaining to the administration of the estate of the decedent better than would the attorneys for the bank or trust company, no matter how eminent those particular attorneys might be. In other words, there should be no hard and fast rule that under all and any circumstances the bank's attorneys should be the attorney for the estate. It might be that the attorneys for the bank or trust company were engaged in some litigation in which the interests were antagonistic to that of the estate of which the bank or trust company is the executor or trustee. In such a case there could, of course, be no question that the bank's counsel should not be retained to advise it with regard to that particular estate. Then, again, it must be remembered that if the testator had confidence in the attorney whom he employed, there is reason for the bank or trust company to be willing to allow the attorney to represent it in the administration of the estate in question. It is eminently fair that a reputable attorney should be retained. He worked hard to get the good-will of the client and he does not want to lose the opportunity of representing the client's estate when the client dies. It must always be remembered that if a bank or trust company refuses to permit the attorney to act, it is taking away business from the attorney; and when one takes away business from another, friendly relations, to say the least, are not established. Attorneys are just as human as men in other walks of life and they react to the attitude of the bank or trust company in the same manner that other men would. Good business policy, therefore, seems to dictate that as much latitude in retaining counsel in the work of administering estates be allowed as is consistent with the responsibility that the bank or trust company assumes. If it would be perfectly safe to permit the attorney who represented the decedent in his lifetime to represent the bank or trust company in the administration of his estate, he should be allowed to do so. Considerable agitation has been set on foot by attorneys to restrict the activities of banks or trust companies in getting fiduciary business, the motive of which probably lies in the fact that a certain amount of business is being taken from attorneys. If, by a liberal attitude on the part of banks or trust companies, this attempt to get adverse legislation can be discouraged, that is much to be desired. In conclusion it may be said that: 1. It is absolutely improper for any corporation, and especially a bank or trust company, to do anything which can be considered practicing law. In observing this rule it is better to err on the side of conservatism than otherwise. The consequences in some states are serious; in all, it is unethical. 2. The counsel who are regularly retained by the bank or trust company may not be able to handle certain fiduciary matters as satisfactorily as the attorney who usually represented the testator or the creator of the trust. 3. A large proportion of the business is derived from the lawyers and consequently their good-will is valuable. 4. Adverse legislation is the all too likely result of methods considered reprehensible by the various bar associations, which are always trying to improve the administration of justice. REVIEW QUESTIONS 1. Why is the advice of counsel essential to a fiduciary corporation? 2. What has caused some friction between trust companies and lawyers as a class? 3. What are the requirements for admission to the bar? 4. Why is it difficult to make a will? 5. Why are fiduciary corporations disqualified for such work? What is the procedure when a customer employs them to make a will? To whom does a lawyer, under such circumstances, owe the higher obligation? 6. What conflict of interest arises at times in the preparation of a will? 7. To what extent can a fiduciary corporation go in advising customers in legal matters? Why is it desirable that lawyers and bankers should be on friendly terms? 8. Where a fiduciary corporation is acting, should it use its own counsel? Why? Is the rule unvarying? |