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OBA Ethics Counsel

Ethics Opinion No. 73

Adopted June 22, 1934

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

"'C' employs a firm of lawyers to write his will. Some months after the will is written, 'C' dies. The executor named in the will is appointed, and the will admitted to probate. The firm of lawyers who wrote the will did not file the probate proceedings nor do not represent the executor. After the will is filed for probate, 'M' consults the lawyers who wrote the will, advising that she is the common law wife of 'C'. She is not mentioned in the will, and desires to file an application to share in the estate as the wife.

Are the lawyers who drew the will for 'C' during his lifetime and who do not represent the executor, disqualified from representing 'M', who claims to be the common law wife?"

In response:

The Board is of the opinion that the representation of 'M' by the attorneys who drew the will would be inconsistent with their prior relation to the decedent; and it is, therefore, of the opinion that the attorneys who drew the will cannot, with propriety, represent 'M'.

Two considerations prompt this conclusion.

First: to represent 'M' under the circumstances would contravene the implied, if not the express, prohibition of Rule 8 of the rules of professional conduct, which rule interdicts the representation of conflicting interests; it would be the duty of the lawyers to contend on behalf of 'M' for a disposition of the estate of 'C' contrary to the terms of the will which they prepared as attorneys for 'C'.

Second: It is the duty of a member of the bar, not only to avoid all impropriety, but also to avoid the appearance of impropriety and (Rule 31) to strive, at all times, to uphold the honor and to maintain the dignity of the profession. Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession. For obvious reasons, the acceptance of employment from 'M', under the conditions presented, would so tend. Confidence with reference to the disposition of his estate had been reposed by 'C' in the lawyers who drew his will. It is not seemly that those lawyers should subsequently accept employment from others, the object of which is to defeat the expressed intent and purpose of their former client. As stated in opinion 83 of the Committee on Professional Ethics and Grievances of the American Bar Association, personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem; it marks the clear distinction between a trade or business and a profession.