Can one lawyer represent both a renouncing spouse and a separate claimant against the same estate, and can a lawyer represent an executor who also owes the estate money?

Plain-English summary

A wife died testate leaving everything to her daughter, the executor. The surviving husband (Mr. X), represented by Lawyer A as a renouncing spouse seeking the statutory one-third share, was also the head of a small church corporation that Lawyer A separately represented in a claim against the estate. Lawyer B represented the daughter both as executor and individually, where she owed the estate roughly $75,000 and a special administrator had been appointed to collect that debt.

On Lawyer A, the opinion applied Rule 1.7. It concluded there was a potential conflict between Mr. X's interest in a one-third share and the church's interest in its claim, because both draw on the same estate. The degree of adversity depends on the size of the church's claim relative to the estate: if the claim could exceed the estate's value, the conflict is severe. Drawing on Opinion No. 94-21, the opinion concluded the "reasonable belief" exception is measured by an objective standard, and that "reasonable belief" and "client consent" are conjunctive, so even with consent the representation is barred where a reasonably prudent lawyer would believe it would have adverse consequences. The opinion concluded Lawyer A must determine the relevant values to assess the adverse consequences to each client.

On Lawyer B, the opinion concluded there was no dual-representation problem, because Lawyer B represents only one client (the daughter), and the attorney-client relationship in an estate runs between the lawyer and the personal representative, not the estate (Opinion No. 802). The daughter herself had a conflict between her individual interest as debtor and her fiduciary duties as executor, but the opinion concluded that the probate court's appointment of a special administrator to collect the debt (under the Probate Act provisions developed in the cited case law) eliminated that conflict, so Lawyer B was not prohibited from representing her in both capacities.

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rule 1.7), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can one lawyer represent both a renouncing spouse and a claimant against the same estate?

A: The opinion concluded it may be improper under Rule 1.7. The conflict's severity depends on the size of the claim relative to the estate, and the lawyer must determine those values to assess the adverse consequences to each client.

Q: Can the clients just consent to the dual representation?

A: The opinion concluded consent alone does not cure it. The "reasonable belief" and "consent" requirements are conjunctive, so even with consent the representation is barred where no reasonable lawyer could believe it would avoid adverse consequences.

Q: Can a lawyer represent an executor who personally owes money to the estate?

A: The opinion concluded yes, where the probate court has appointed a special administrator to collect the debt, which eliminates the executor's personal conflict between her individual and fiduciary capacities.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts, the objective "reasonable belief" standard, the conjunctive belief-and-consent requirement, and the duty under Rule 1.7(c) to explain the implications of common representation; Model Rule 1.7). It relied on the Illinois Probate Act's special-administrator provisions and case law allowing a special administrator to resolve a representative's conflict.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7(a), (b), (c)

Statutes:

• 755 ILCS 5/2-8(a) (renouncing spouse's one-third share)
• 755 ILCS 5/23-2(a) (removal of a personal representative)
• 735 ILCS 5/18-8; 735 ILCS 5/16-1 (special administrator to address claims involving the representative)

Cases:

• In re Estate of Phillips, 3 Ill. App. 3d 1085, 280 N.E.2d 43 (2d Dist. 1972)
• Estate of Storer v. Storer, 131 Ill. App. 2d 1049, 269 N.E.2d 352 (5th Dist. 1971)
• First National Bank of Moline v. Muscio, 5 Ill. App. 3d 216, 283 N.E.2d 42 (3d Dist. 1972)

Other opinions cited:

• ISBA Advisory Opinions Nos. 802, 90-03, 90-26, and 94-21

See also

• ISBA Ethics Op. 09-02: Concurrent Representation of Physician and Co-Defendant Hospital
• ISBA Ethics Op. 13-02: Representing Business Partners Adverse to the Partnership

Source

• Landing page: https://www.isba.org/ethics/opinions/9605