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OBA Ethics Counsel

Ethics Opinion No. 44

Adopted November 25, 1932

The Board is in receipt of the following request for an advisory opinion:

"I am confronted with this situation:

A, an Indian allottee, died intestate, leaving valuable real estate. One set of heirs, I will call them the B heirs, have employed me to represent them. As usual there are many conflicting claimants. Another set of heirs, the C heirs, have also requested me to represent them.

Under the law and facts as I see them, it is quite possible that if the B heirs succeed the C heirs will be excluded, and vice versa. Again both the B heirs and the C heirs may succeed in their claims, but if so, upon one set of facts the B heirs would obtain a larger percentage of the property than the C heirs, and vice versa.

All the B and C heirs are full blood Indians, each individual having about the usual intelligence of full bloods. The B heirs are agreeable to my representation of the C heirs and the C heirs desire me to represent them with knowledge of my representation of the B heirs.

May I, with propriety, represent both sets of heirs?"

In response:

Rule 8 of the Rules of Professional Conduct provides:

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

It would appear, therefore, that the inquirer would not violate the express language of the rule were he to accept employment from both sets of heirs. This, of course, would be the case without question if there were no doubt as to the intelligence of all the parties concerned.

The Board, however, feels that in a case where there can be doubt as to the full appreciation of the situation by the parties concerned, the upholding of the honor of the profession (Rule 31 of Professional Conduct) would be better subserved were the inquirer to refuse to accept the employment of the "C" heirs. It is the duty of a member of the bar not only to avoid all inpropriety [sic], but also to avoid the appearance of impropriety.

The bar as a whole should, and undoubtedly would, frown upon the situation presented were the inquirer to accept employment from the "C" heirs.