Could an estate lawyer also represent former spouses whose claims depended on defeating the estate's position in a foreclosure?

Plain-English summary

The dispute involved mortgaged real estate, an escrow deed intended to transfer the property to the owner's son at her death, foreclosure, and claims by two former wives seeking to satisfy divorce judgments from the son's interest. The executor's position was that the deed was an invalid testamentary disposition, while the former wives could recover only if the deed was valid and gave the son title.

The committee found no conflict in the executor's lawyer also representing the devisees. Their interests were consistent with, if not identical to, the executor's effort to defeat foreclosure and invalidate the deed.

The former wives' interests directly opposed the estate's position. Because the lawyer could not give independent professional judgment and adequate representation to both sides, former DR 5-105 prohibited representing the executor and the former wives together despite the earlier agreement to do so.

Currency note

This opinion was issued in 1974, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Could the executor's lawyer also represent the devisees?

A: Yes. The committee found their interests consistent with the executor's position in the foreclosure and cross-claim litigation.

Q: Why could the lawyer not also represent the former wives?

A: Their judgments could be satisfied from the son's property interest only if the escrow deed was valid, while the executor sought a decree that the deed was invalid.

Q: Did consent alone permit the adverse multiple representation?

A: No. Former DR 5-105(C) also required it to be obvious that the lawyer could adequately represent each interest, which the committee found impossible on these facts.

Background and rules framework

The opinion contrasted former Canon 6, which allowed some conflicting representations after disclosure and consent, with the stronger requirements in DR 5-105. The new provision required both informed consent and an obvious ability to represent every client adequately.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 6
• DR 5-105(A), (B), and (C)

Other opinions cited:

• ABA Opinion 224
• ABA Opinion 247

See also

• Nebraska Ethics Op. 75-10: Lawyer as bank trust officer
• Nebraska Ethics Op. 81-6: County attorney and inheritance tax
• Nebraska Ethics Op. 87-4: Lawyer as escrow agent

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 74-10

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Nebraska Ethics Advisory Opinion for Lawyers No. 74-10

A LAWYER MAY NOT REPRESENT CONFLICTING INTERESTS WHERE SUCH REPRESENTATION INTERFERS WITH THE EXERCISE OF INDEPENDENT PROFESSIONAL JUDGMENT AND WHERE ADEQUATE REPRESENTATION OF ALL PARTIES WILL NOT RESULT FROM SUCH MULTIPLE REPRESENTATION.

FACTUAL SITUATION

A mother and her son and daughter-in-law executed a note and mortgage and thereafter the mother placed a deed of the premises in escrow under which the son would acquire title to the real estate at the mother's death. The daughter-in-law later secured a divorce decree against the son and this again happened to a second marriage of the son. The mortgagee foreclosed the mortgage and the son's whereabouts being unknown, service upon him was had by publication.

In the foreclosure the mother cross petitions against the mortgagee for an accounting of rents and cross petitions against the son claiming the escrow deed is an invalid testamentary disposition.

Both former wives seek to have their divorce judgments satisfied out of the interest of the son in the property, since the mother has died prior to the trial. The devisees in the mother's will are four grandchildren and the son is excluded.

The attorney for the mother by agreement of the two former wives has represented these three parties.

QUESTIONS PRESENTED

(1) Can the attorney for the Executor who will handle the cross petition litigation represent the devisees under the will in the foreclosure and cross- claim matters?

(2) Can the attorney for the Executor continue to represent the divorced wives?

DISCUSSION

The position of the Executor in this litigation will necessarily be to represent the interests and claims of the deceased mother. If successful, he will prevent a foreclosure and/or obtain a decree that the real estate has not validly been deeded to the son.

The interests of the devisees under the will appear to be consistent, if not identical, with the position that the Executor will assume. Therefore, there appears to be no conflict in the attorney for the Executor representing the devisees in the foreclosure and cross petition litigation and he may do so.

In the case of the divorced wives, the situation is entirely different. They can make no recovery against the mother or her estate. Their claim is against the son and will be good only if the escrow deed is valid and gives the son title to the real estate.

Previous to the adoption of the Code of Professional Responsibility, the pertinent Canon was No. 6 provided:

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts."

Under the foregoing canon the required showing and consent permitted representation of conflicting interests in certain cases. Opinion 247.

But as stated in Opinion 224, it was the duty of counsel to advise the second party that the latter should have separate counsel and a question existed as to whether in case of a conflict, the counsel could actually give advice to both parties. The new Code strengthens the limitations and requirements in this area. DR 5-105 provides:

"DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another
Client May Impair the Independent
Professional Judgment of the Lawyer.

(A) A lawyer shall decline proffered employment if the exercise of his independent professional 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 situations 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 effect of such representation on the exercise of his independent professional judgment on behalf of each."

In the instant situation, it is quite apparent that the attorney for the Executor could not represent both the Executor and the wives and give each the "independent professional judgment" required. Moreover, it is clear that the attorney could not "adequately represent" the interests of each of the parties and such representation is forbidden by the Code. Nebraska Ethics Advisory Opinion for Lawyers No. 74-10