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OBA Ethics Counsel

Ethics Opinion No. 59

Adopted October 27, 1933

The Board is in receipt of a request for an advisory opinion upon the point as to whether or not an attorney for an executor or administrator of an estate may with propriety represent a claimant against the estate or a person claiming to be an heir of the deceased whose estate is being administered in opposition to another person also claiming to be an heir of the deceased.

It is the general and well settled rule that an attorney who has acted as such for one side, may not render services professionally in the same case to the other side, nor in any event whether it is in the same case or not, may he assume a position hostile to his client and one inimical to the very interest he was engaged to protect.

This general rule applied to an attorney for an executor or administrator of an estate of a deceased person precludes that attorney from representing any heir for the purpose of supervising the proceedings of the administrator or executor with reference to the estate, and the attorney is equally precluded from representing any person claiming as a creditor of the deceased whether the claim arose out of contract or tort.

If the administrator or executor is an heir at law or devisee of the deceased person, his counsel is also disqualified to represent any other heir in any dispute involving the inheritance or devise where there is a conflict of interest with the claim of the administrator or executor as an heir or devisee.

If the administrator or executor has no interest in the estate under administration other than in his official capacity as such administrator or executor, his counsel is not disqualified to represent an heir at law or a devisee in any controversy strictly between co-heirs or co-devisees and not involving the duties of the administrator or executor.