September 1, 1987
A lawyer who represented the personal representative of an estate in connection with the probate administration of the estate may represent the devisees of the estate in a later proceeding not related to the administration of the estate and after the estate has been administered and closed, contrary to the interests of the personal representative and despite the objection of the personal representative, if no continuing relationship between the lawyer and the personal representative exists, and it is not likely that the lawyer will be called as a witness in the later proceeding.
References: MCPR DR 5-101(A) and (B), DR 5-102, DR 5-101(B); Op 103; CI-354.
A lawyer prepared a will for a client and upon the client's death represented the decedent's widow as executrix of the estate. The will provided that the widow would have a life estate in the decedent's residential premises as long as she occupied and maintained the residence, and at the end of the life estate the residence would go to certain devisees. For several years the widow has not occupied the residence due to senility and institutionalization.
The devisees have asked the lawyer's firm to represent them in a declaratory action to terminate the widow's life estate. Since completion of the probate proceeding, the lawyer has had no contact with the widow. The lawyer asks whether a member of the lawyer's firm may represent devisees under that will over the objection of the decedent's widow and the widow's guardian.
The issues presented are: (1) whether a lawyer-client relationship existed between the client's widow and the lawyer who drafted the will and represented the estate; (2) whether a lawyer commits professional misconduct if the lawyer later represents devisees under a will the lawyer drafted twelve years after the will has been probated and such representation is contrary to the interest of the executrix; and (3) whether, in the event the matter is raised in court proceedings, the firm can continue representation of the devisees if a lawyer for the firm will be called as a witness.
The facts provided indicate the law firm has never represented the widow in any capacity other than that of personal representative. Since the lawyer who represented the estate assisted the widow only in connection with the normal administration of the estate, not with personal legal guidance, no lawyer-client relationship was formed. Therefore, the firm would not violate any lawyer-client relationship by representing those opposed to the widow's retention of the property. Had a lawyer-client relationship existed between the lawyer and the widow, the lawyer would be disqualified from representing the devisees over the widow's objection. This rule is stated in CI-354: "An attorney should avoid representation of a party in a suit against a former client where there may be the appearance of conflict of interest or a possible violation of confidences, even though such may not in fact exist."
Provided the will is clear and unambiguous, there should be no dispute over the intent of the testator. The determination of whether the conditions of the will have been met is a question of fact for the court. However, if the language is not clear, and the provisions of the will must be interpreted, it may be necessary to call as a witness the lawyer who drafted the document. MCPR DR 5-101(A) states:
"Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment onbehalf of his client will be or reasonably may be affected by his won financial, business, property, or personal interests."
Acting as a witness, outside of the exceptions enumerated in MRPC DR 5-101 runs contra to MCPR DR 5-101(B), which states:
"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
"(1) If the testimony will relate solely to an uncontested matter.
"(2) If the testimony will relate solely to matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer of his firm to the client.
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."
Given the facts of this case, it is doubtful that any of these exceptions apply. Therefore, the widow and her guardian can argue that the lawyer should be disqualified. Furthermore, according to MCPR DR 5-102, even after accepting employment, should a lawyer contemplate being called as witness, the lawyer should withdraw unless the testimony would fall within MCPR DR 5-101(B). See also Op 103: "A lawyer may act for a proponent of a will without preventing his acting as a witness upon merely formal matters; but he may not represent the proponent of a will where a contest develops and he knows or has reason to believe his testimony will be essential to a client's case."
Accordingly, the lawyer's firm may represent the devisees under the will unless the lawyer would likely be called as a witness. If a lawyer is likely to be called as a witness, MCPR DR 5-101(B) must be considered before undertaking representation.