Can a lawyer who represents a husband and wife as co-executors of an estate also represent the wife in her divorce against the husband, and can the lawyer fix the conflict by dropping the husband?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented a husband and wife as co-executors of an estate; the two were also devisees of a substantial minority interest in valuable real estate, and the lawyer had never represented either of them on anything else. During the representation they decided to divorce, and the wife asked the lawyer to represent her in the divorce. The lawyer had obtained no confidential information from the husband individually and asked three questions: whether he could represent the wife without the husband's consent, whether he could with the husband's consent, and whether he could resolve the problem by ceasing to represent the husband as co-executor.
On the first question, the committee applies Rule 1.7 and asks whether representing an individual as executor amounts to representing that individual personally. Drawing on its Opinion 92-2, it explains that an executor who is also a principal or important beneficiary is "acting essentially for himself," so the individual should be treated as a client for conflict purposes. Because the husband is a substantial beneficiary, the McCourt rule governs and the lawyer may not represent the wife in the divorce over the husband's objection; the committee finds no relevant difference between the old DR 5-105 and current Rule 1.7(a) on this point.
On the second question, the committee explains that with the husband's consent the representation is allowed only if the lawyer can satisfy Rule 1.7(a)'s further, objective condition that a reasonable attorney would conclude the divorce representation would not adversely affect the estate representation. Whether that test is met depends on the facts: an amicable divorce might satisfy it, while the prospect of contention points the other way, and the committee notes the lawyer might have to withdraw mid-divorce to the wife's detriment, a risk that would have to be explained to her at the outset. On the third question, the committee again follows Opinion 92-2 and the Jelco "hot potato" rule, concluding the lawyer cannot cure the conflict by dropping the husband as co-executor, because the ability to represent multiple parties is fixed as of when the conflict arises.
In practice
Under this opinion, where co-executor clients are also substantial beneficiaries, the committee treats representation of one as representation of that person individually, so a lawyer may not take the wife's divorce against the husband over his objection. Per the opinion, with the husband's consent the representation is permitted only if the lawyer can meet Rule 1.7(a)'s objective test that the divorce work will not adversely affect the estate representation, which the committee makes fact-dependent (amicable versus contentious proceedings). The committee concludes the lawyer cannot solve the problem by withdrawing from the husband as co-executor, applying the hot-potato rule.
Common questions
Q: Is representing someone as executor the same as representing them individually for conflict purposes?
A: The committee concludes that where the executor is also a substantial beneficiary and so acting essentially for himself, yes; the individual is treated as a client under Rule 1.7, following Opinion 92-2.
Q: Can the lawyer take the divorce if the husband consents?
A: Only if the lawyer can also satisfy Rule 1.7(a)'s objective test that the divorce representation will not adversely affect the estate representation, which the committee says depends on whether the divorce is amicable or contentious.
Q: Can the lawyer just stop representing the husband as co-executor to clear the conflict?
A: No. The committee applies the hot-potato (Jelco) rule and concludes the conflict cannot be cured by withdrawing from the husband's representation.
Background and rules framework
The opinion interprets Mass. R. Prof. C. 1.7 (concurrent conflicts of interest), both the directly-adverse standard in 1.7(a) and the material-limitation standard in 1.7(b), and treats the substantive principle as continuous with former DR 5-105. Rule 1.7 corresponds to the Model Rule of the same number.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / Mass. R. Prof. C. 1.7(a), 1.7(b), Comment 3 (concurrent conflicts; consent and objective test)
Cases:
- The McCourt Co. v. FPC Properties, Inc., 386 Mass. 145 (1982) (no adverse representation of a current client absent consent)
- Unified Sewerage Authority v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981) (hot-potato rule)
Other opinions cited:
- MBA Opinions 92-2 and 84-4 (executor as individual client; hot-potato rule)
See also
- MA Bar Ethics Op. 02-2: Representing rival developers at a zoning board
- MA Bar Ethics Op. 2004-2: Suing a joint-venture partner for a new client
Source
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