Can a lawyer represent the executor of an estate and also represent a beneficiary of that estate, including jointly defending them in litigation?

Plain-English summary

The lawyer represents an estate arising from the conduct of a deceased father and his two adult children, a son and a daughter. The son was sued for tortious interference and the father for breach of contract in real estate litigation, and the father and son had jointly retained the lawyer with a fee-reimbursement arrangement. After the father died, the daughter became executor, and the lawyer was also handling an unrelated sale of estate property. The daughter raised, then walked back, the idea of blaming the son for the failed transaction. The lawyer asked whether she may represent the daughter as executor in the unrelated sale, as executor generally, and jointly with the son as co-defendants in the real estate litigation.

The opinion applies Rule 1.7. On the unrelated sale, it concludes there is no conflict under Rule 1.7(a)(1) because the son is not a party and has no differing interests, so the lawyer may continue. On representing the daughter as executor generally, the opinion concludes there is a potential for differing interests, because the daughter could decide to blame the son or unwind the fee-reimbursement arrangement to increase the estate (and her inheritance), which would put the lawyer in the position of representing one current client against another; using the Rule 1.0(f) definition of "differing interests" and Comment [8], the opinion concludes the conflict is consentable on these facts given the daughter's stated intent, requiring the lawyer's reasonable belief and each client's informed written consent. On the joint defense in the litigation, the opinion concludes the same differing interests exist and are sharpened by Rule 1.7(a)(3)'s bar on representing one client against another in the same proceeding, so the joint representation requires a consentable conflict and informed written consent. The opinion notes it was not asked to assess the validity of the existing conflict waiver but cautions that its scope, terms, and disclosures are critical.

In practice

Under this opinion, representing an estate's executor and a beneficiary in unrelated matters is not a concurrent conflict, but jointly representing the executor and a co-beneficiary as co-defendants involves differing interests requiring the lawyer's reasonable belief that she can serve each client and each client's informed written consent. Per the opinion, if the executor directs a cross-claim against the co-beneficiary in the same litigation, the conflict becomes nonconsentable.

Common questions

Q: Can a lawyer represent an estate's executor and also a beneficiary in an unrelated matter?

A: Per the opinion, yes. There is no concurrent conflict under Rule 1.7(a)(1) where the beneficiary is not a party to the executor's matter and has no differing interests.

Q: What makes the joint defense of the executor and a co-beneficiary a conflict?

A: Per the opinion, the executor's interest in maximizing the estate (potentially by blaming the co-beneficiary or denying fee reimbursement) differs from the co-beneficiary's interest in minimizing his own liability, which is a differing interest under Rule 1.7(a)(1) and (a)(3).

Q: When does the conflict become nonconsentable?

A: Per the opinion, if the executor instructs the lawyer to file a cross-claim against the co-beneficiary in the same litigation, the conflict becomes nonconsentable.

Background and rules framework

The opinion interprets New York Rule 1.7(a)(1), (a)(2), (a)(3), and (b) (concurrent conflicts of interest and consentability) and Rule 1.0(f) (the definition of "differing interests"). These correspond to ABA Model Rules 1.7 and 1.0.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(f), 1.7(a)(1)-(2), (b)(1), (b)(3) & (b)(4)
• ABA Model Rules 1.7, 1.0 (analogues)

See also

• NYSBA Ethics Op. 1255: Defense Lawyer Dating an Officer
• NYSBA Ethics Op. 1283: Attorney-Owned Title Agency

Source

• Landing page: https://nysba.org/ethics-opinion-1253/