If a lawyer represents two co-executors who fall out, can the lawyer take one executor's side against the other?

Plain-English summary

The committee addressed a lawyer retained by two co-executors (one a bank, one an individual executor-beneficiary) who later found himself caught between their conflicting positions and the interests of the estate itself. Finding no direct New York authority, it drew on the Code's broad standards, analogous court decisions, and out-of-state ethics opinions. Under Canon 5, DR 5-105 bars accepting or continuing multiple employment where one client's interests may impair the lawyer's independent judgment for another, and DR 5-107(A) requires undivided loyalty; EC 5-15 cautions that a lawyer should rarely represent multiple clients with differing interests and should resolve doubts against the multiple representation, especially in litigation.

The committee added several complementary principles: DR 2-110(B)(2) requires withdrawal when the lawyer can no longer serve a client with undivided loyalty; DR 4-101(B) bars speaking against a former client's interests even after leaving the employ; and Canon 9 condemns "turncoat" representation even absent misuse of confidences. It noted courts and other jurisdictions have applied these principles to bar a lawyer from representing both an estate and persons with claims against it, or from seeking to remove an executor he once represented (citing Illinois, North Carolina, Michigan, and Los Angeles County opinions and Matter of Howard). The lawyer, though retained by the executors, owes a duty to serve the best interests of the estate (N.Y. State 477).

Applying these principles, the committee concluded the lawyer is duty bound to call on the bank to do what proper administration requires and to refrain from assisting conduct inconsistent with the estate's interests, and he may withdraw if the bank refuses his advice. But he may not institute a proceeding to compel an accounting or otherwise represent one executor against the other, and the executor-beneficiary's retention of separate counsel would not relieve that obligation. The committee stressed that a falling out, or even litigation, between co-executors does not always require the lawyer to withdraw entirely: one appropriate course is to recommend the executor-beneficiary retain independent counsel, after which the lawyer may continue handling estate matters as to which there is no conflict. The first two subparts were answered in the negative and the third, subject to those qualifications, in the affirmative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the conflict standards now appear at Rule 1.7 and the withdrawal rules at Rule 1.16). Canon 9's "appearance of impropriety" standard, on which the opinion partly relied, was not carried forward into the 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 mentioned here.

Common questions

Q: Can a lawyer for two co-executors take one side against the other?

A: No. The committee held the lawyer may not bring a proceeding to compel an accounting or otherwise represent one executor against the other, even if that other executor hires separate counsel.

Q: Must the lawyer withdraw from the estate entirely when the co-executors clash?

A: Not necessarily. The committee said a falling out does not always require full withdrawal; the lawyer may recommend the executor-beneficiary retain independent counsel and then continue handling conflict-free estate matters.

Q: What does the lawyer owe the estate as opposed to the individual executors?

A: The committee said the lawyer must serve the estate's best interests, calling on the executors to do what proper administration requires and refusing to assist conduct inconsistent with the estate, withdrawing if his advice is ignored.

Background and rules framework

The opinion applied Canon 5's conflict and loyalty provisions (DR 5-105, DR 5-107(A), EC 5-15), the withdrawal duty of DR 2-110(B)(2), the post-employment limit of DR 4-101(B), and Canon 9's bar on turncoat representation to a lawyer jointly retained by co-executors. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts)
• MR 1.16 (withdrawal)
• NY Canon 5, Canon 9, EC 5-15, DR 2-110(B)(2), DR 4-101(B), DR 5-105, DR 5-107(A)

Cases:

• Matter of Howard, 80 Misc. 2d 754 (Surr. Ct., Bronx Co. 1975), former counsel could not seek the executor's removal

Other opinions cited:

• N.Y. State 477 (1977): the executor's lawyer must avoid positions antagonistic to the estate
• Ill. Op. 412 (1974) and N.C. Op. 1 (1974): barring representation of both estate and claimants against it

See also

• NY State Bar Op. 517: Conflicting representation in two matrimonial matters
• NY State Bar Op. 519: Insurer staff counsel when coverage is disclaimed
• NY State Bar Op. 514: Guardian ad litem later serving as the conservator's counsel

Source

• Landing page: https://nysba.org/opinion-512/