May a lawyer who once represented an estate's administratrix later represent heirs in a proceeding against her?

Plain-English summary

A lawyer asked whether he could represent four heirs of a decedent whose estate was being probated, where he had formerly represented the administratrix in connection with her appointment but had been discharged after he remonstrated with her about disposing of estate property without proper court authority, and where no confidences had been reposed in him by her or other family members.

The committee concluded the lawyer may not with propriety represent an heir or any other person in a proceeding against the administratrix. Even though she reposed no confidential matters in him, she was certainly in a position to do so, and the attorney was in a position where he could well have acquired information usable to her detriment in a subsequent proceeding. The committee quoted the last paragraph of Canon 6, which forbids the subsequent acceptance of employment from others in matters adversely affecting an interest of the client as to which confidence has been reposed, and the first paragraph of Canon 37, on the duty to preserve a client's confidences, which outlasts the employment and forbids accepting employment that may involve their disclosure or use to the client's disadvantage. The committee said the proposed employment would directly conflict with both Canons, and quoted Drinker's Legal Ethics that one who has represented an administratrix may not accept employment to bring an action against her in connection with her duties as such.

Currency note

This opinion was issued in 1957, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Duties to former clients and the use of their confidences are governed today by different rules (for example Rules 1.9 and 1.6) that are stated and applied differently than Canons 6 and 37. Treat this page as historical context, not current guidance.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: Could the lawyer represent the heirs against the administratrix he once represented?

A: No. The committee concluded he may not with propriety represent an heir or any other person in a proceeding against his former-client administratrix.

Q: Did it matter that she had reposed no confidences in him?

A: No. The committee said she was in a position to do so and he was in a position to acquire information usable to her detriment, which was enough under Canons 6 and 37.

Q: What authority did the committee rely on beyond the Canons?

A: It quoted Drinker's treatise that one who has represented an administratrix may not accept employment to bring an action against her in connection with her duties.

Background and rules framework

The opinion applied Canon 6 (subsequent adverse employment where confidence was reposed) and Canon 37 (preserving a client's confidences, a duty outlasting the employment) of the Canons of Professional Ethics, adopted in Oklahoma, drawing on Drinker's treatise. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): forbids accepting employment from others in matters adversely affecting an interest of the client as to which confidence has been reposed.
• Canon 37: the duty to preserve a client's confidences outlasts the employment and forbids accepting employment that may involve their disclosure or use to the client's disadvantage.

Other authorities:

• Henry S. Drinker, Legal Ethics, p. 111

See also

• Okla. Bar Ethics Op. 184: Defending after a prospective client consulted the partner
• Okla. Bar Ethics Op. 178: A lawyer's duty when the administrator-client conceals estate assets

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-192/

Original opinion text

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

Adopted September 11, 1957

The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:

INQUIRY

An attorney has sought the opinion of the Committee on the propriety of representing four heirs of a decedent, whose estate is being probated in the County Court, when he had formerly represented the administratrix of said estate in connection with her appointment, but had subsequently been discharged by her when he remonstrated with her concerning the disposal of what he considered to be property of the estate without proper authority from the court, even though in the course of his representation of the administratrix no confidences were reposed in him by her or other members of the family.

OPINION

It is the opinion of the Committee that the lawyer may not with propriety represent an heir or any other person in a proceeding against the administratrix. Even though the administratrix reposed no matters of a confidential nature in said attorney, she was certainly in a position so to do, and the attorney was also in a position where he could well have acquired information which could be used to the detriment of the administratrix in any subsequent proceeding.

The last paragraph of Canon No. 6 of the Canons of Professional Ethics reads as follows:

“The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”

The first paragraph of Canon No. 37 of the Canons of Professional Ethics reads as follows:

“It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.”

It is our opinion that the proposed employment described above would be in direct conflict with both of said Canons. Mr. Henry S. Drinker, in his authoritative work on legal ethics, at page 111, makes the following statement:

“One who has represented an administratrix may not accept employment to bring an action against her in connection with her duties as such.”

He cites as authority for such statement an opinion of the American Bar Association and one from the State of Michigan.