OBA Ethics Counsel
Ethics Opinion No. 266
Adopted April 21, 1972
An attorney has been retained to represent the executrix of a will. The executrix has no personal interest in the estate of the deceased under either the will or under the laws of descent and distribution.
The sole legatee named under the will is an adopted child of the deceased. A contest has developed concerning the validity of the will in that two separate persons have filed claims alleging, respectively, that they were common law husbands of the deceased.
The attorneys retained to represent the executrix of the subject estate have raised the question of whether with propriety they can represent both the executrix and defend the sole legatee and devisee under the will against the claims of the two individuals asserting common law marriage relationship with the deceased.
Canon 5 of the Code of Professional Responsibility provides:
"A lawyer should exercise independent professional judgment on behalf of a client."
Ethical consideration 5-15 expands upon this basic rule:
"If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with different interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially."
Thus, if there is any likelihood of conflict, or even the appearance of conflict, then the attorney should undertake a representation of only one of the clients possessing diverse interests. Also see Canon 9, Code of Professional Responsibility.
The attorney retained to represent the executrix of the will in this case must devote his entire professional ability to the representation of the executrix. The duties of the executrix are to administer and ultimately distribute the estate of the decedent in a lawful manner. If facts develop which indicate that the will contest is well founded, the representation of the executrix would seemingly conflict with the representation which would be owed to the sole legatee and devisee under the will by his attorney.
In view of the potential for conflict of interests presented, it is the opinion of the Legal Ethics Committee that the counselor should refrain from accepting employment to represent the sole legatee and devisee under the will in this case.