June 18, 1987
It is unethical for a lawyer to represent a personal representative of a decedent's testate estate when that lawyer is a current employee and former counsel of one will beneficiary who holds a position adverse to other will beneficiaries.
References: MCPR Canon 5; DR 5-105(A), (B), and (C); CI-993, CI-1152.
A bequest in a testator's will could be interpreted to give to a state college either $500,000, $250,000, or nothing. The will specifies that this bequest shall be distributed to the college for construction of a building if construction is commenced within five years following the testator's death. The will further specifies that if this condition is not satisfied, the gift fails and the money shall be distributed to a church and to nine individuals, five of whom are also specific devisees. The will nominates three individuals as co-personal representatives and co-trustees to determine whether the construction condition is satisfied and, if so, what amount, if any, the college shall receive from the estate.
The co-personal representatives are represented by a lawyer employee and faculty member of the college, who has previously represented the college on other unrelated matters, such as land transactions and contracts. Moreover, the lawyer has previously represented three of the residuary beneficiaries, whose shares will be affected by whatever amount is distributed to the college. The lawyer asks whether continued representation of the co-personal representatives represents an impermissible conflict of interest?
MCPR Canon 5 states that a lawyer should exercise independent professional judgment on behalf of a client. MCPR DR 5-105 states:
"(A) A lawyer shall decline proffered 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 his 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."
The thrust of Canon 5 is that multiple representation is forbidden if the lawyer's independent professional judgment on behalf of one client "will be or is likely to be adversely affected" by representation of the other. In the present case, the lawyer would be required to advise the personal representative on whether the college is entitled to any bequest, and, if so, the amount of that bequest. The amount the contingent beneficiaries would receive would be affected by the advice.
The lawyer's former representation of the college and the residual beneficiaries on unrelated matters would not, of itself, create an impermissible conflict, as long as the information on which the lawyer proceeds does not involve reliance upon confidential communications or secrets imparted to the lawyer by the former clients. See, CI-918, CI-879, CI-619, CI-486, CI-354, and CI-250.
However, given the lawyer's current position as employee and faculty member at the college, it would be ethically inappropriate for the lawyer to continue representing the co-personal representatives. Earlier informal opinions which permit a lawyer to represent a client against a former client or employer provide that business relations must have first ceased between the lawyer and the former client or employer. See, CI-993. In the present case, the lawyer continues to have a business relationship with the college, the same entity with regard to which the co-personal representatives will take a position as to the fact and amount of a potentially substantial bequest.
Moreover, the committee has previously opined that it is ethically improper for a lawyer to represent opposing interests in settling a decedent's estate. See CI-1152. By analogy, that opinion would bar the lawyer, an employee of the college, from representing the co-personal representatives who must take a position on whether the college or the contingent beneficiaries are entitled to receive upwards of 1/2 million dollars from the estate.
The lawyer asks, if there is an impermissible conflict, whether "it is possible for the personal representatives to hire another lawyer for the sole purpose of the will interpretation for the college bequest" thereby allowing the lawyer to continue representing the estate on other matters. Although it is certainly possible for the co-personal representatives to retain substitute counsel to handle specific aspects of the estate, as long as the inquirer maintains an employer-employee relationship with the college, the inquirer should not represent the co-personal representatives.
Lastly, the lawyer asks whether any impermissible conflict can be cured by informing all interested parties and securing their informed consent to the lawyer's continued representation of the co-personal representatives. The multiple representation described in MCPR DR 5-105(A) and (B) is permissible if it is obvious that the lawyer can adequately represent the interests of the co-personal representatives and if all interested parties consent to the representation. However, from the facts provided it is not "obvious" that the lawyer "can adequately represent" the interests of the co-personal representatives while also serving as an employee and faculty member of the college. In addition, there remains the question of to whom at the college must the lawyer make the required "full disclosure" and from whom at the college must the lawyer obtain the required consent to the representation.