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Ethics Opinion

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CI-1152

September 10, 1986

SYLLABUS

    It is unethical for a lawyer to represent a claimant in an estate matter whose interests are in conflict with the interests of another claimant also represented by the lawyer.

    References: MCPR Canon 5, DR 5-105; Op 160; CI-155, CI-319, CI-484.

TEXT

An intestatate estate has a value considerably less than the claims against it. A lawyer represents the personal representative, who is also the estate's single largest creditor, and the conservator for the decendent's only child, in their respective fiduciary capacities. The personal representative and the conservator, both fully aware of the lawyer's multiple roles but seeking to cut legal expenses, have asked the lawyer to assist them as claimants in filing claims against the estate. The conservator's claims would be paid from the estate assets before those of any other creditor. Remaining creditors, including the personal claim of the personal representative would be forced to take a percentage of the assets remaining after the conservator's claims are addressed.

Canon 5 requires a lawyer to exercise independent professional judgment on behalf of a client. DR 5-105 provides:

    "(A) A lawyer shall decline preferred employment if the exercise of his independent judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

    "(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).

    "(C) In the situation covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible affect of such representation on the exercise of his independent professional judgment on behalf of each."

Previous ethics opinions has addressed multiple representation in the context of decedent's estates. CI-155 opined that it would be improper for a lawyer to represent one person as administrator of an estate, and also represent that person individually as claimant against the estate. CI-484 stated that

    "[c]onsent by the client in the two capacities is not the informal consent contemplated by DR 5-105(C) and does not render permissible a multiple representation otherwise prohibited."

In this case, the lawyer clearly cannot continue representation of the presonal representative as fiduciary to protect the estate and the beneficiaries, and also as a claimant challenging the distribution of the assets of that estate.

Further, this committee has also determined that it would be improper for a lawyer to represent multiple clients in a litigation if the clients have potentially differing interests, CI-319, and that a "lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty for another client requires him to oppose." Op 160.

Therefore, it would be inappropriate for the lawyer to represent the conservator, since the conservator's claim would automatically reduce the personal representative's interest in the estate as its principal creditor. It is re-emphasized that there need be only potentially differing interests to require that multiple representation be avoided.

Accordingly, the lawyer may represent only one client in this proceeding, and representation of the personal representative as fiduciary and as claimant is inappropriate. Similarly, representation of the personal representative and the conservator is inappropriate. This result is not affected by the fact that the personal representative may be considering resigning fiduciary duties, since the conflict between the interests of the conservator and the personal representative as an individual claimant would remain.

 
     

 

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