Can the lawyer for an estate's executrix also represent the sole legatee defending the will against common-law-marriage claimants?

Plain-English summary

An attorney represented the executrix of a will. The executrix had no personal interest in the estate under the will or the laws of descent and distribution. The sole legatee and devisee under the will was an adopted child of the deceased. A contest arose when two separate persons each filed claims alleging they were common-law husbands of the deceased. The attorney asked whether he could properly represent both the executrix and the sole legatee in defending against the common-law-marriage claims.

The committee applied Canon 5 of the Code of Professional Responsibility, which directs a lawyer to exercise independent professional judgment, and Ethical Consideration 5-15, which warns that a lawyer asked to represent multiple clients with potentially differing interests must weigh whether his judgment may be impaired or his loyalty divided, should resolve all doubts against the propriety of the representation, and would rarely be justified in representing in litigation multiple clients with potentially differing interests. The committee read EC 5-15 to mean that if there is any likelihood of conflict, or even the appearance of conflict, the attorney should represent only one of the clients with diverse interests, also citing Canon 9.

Applying that standard, the committee reasoned that the attorney for the executrix must devote his entire professional ability to representing her, whose duty is to administer and distribute the estate lawfully. If facts developed showing the will contest was well founded, representing the executrix would seemingly conflict with the representation owed to the sole legatee. Given the potential for conflict, the committee concluded the attorney should refrain from accepting employment to represent the sole legatee in the case.

Currency note

This opinion was issued in 1972, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The conflict-of-interest rules have since been recast (compare Model Rules 1.7 and 1.9); 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 Treat this page as historical context, not current guidance.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: Why couldn't one lawyer represent both the executrix and the sole legatee?

A: The committee reasoned that the executrix's duty to administer the estate lawfully could diverge from the legatee's interest in upholding the will, so if the contest proved well founded the two representations would conflict.

Q: How likely did a conflict have to be before the lawyer had to decline?

A: Under the committee's reading of EC 5-15, any likelihood of conflict, or even the appearance of conflict, meant the attorney should represent only one of the clients with diverse interests.

Q: Which client should the lawyer keep?

A: The committee said the attorney must devote his entire professional ability to the executrix who retained him, and should refrain from accepting employment to represent the sole legatee.

Background and rules framework

The opinion applied Canon 5 of the Code of Professional Responsibility (independent professional judgment) and Ethical Consideration 5-15 (caution against representing multiple clients with potentially differing interests, resolving doubts against the representation), with reference to Canon 9 (avoiding even the appearance of impropriety). The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 5 (Code of Professional Responsibility): a lawyer should exercise independent professional judgment on behalf of a client.
• EC 5-15 (Code of Professional Responsibility): a lawyer should resolve doubts against representing multiple clients with potentially differing interests and would rarely be justified in doing so in litigation.
• Canon 9 (Code of Professional Responsibility): a lawyer should avoid even the appearance of professional impropriety.

See also

• Okla. Bar Ethics Op. 254: Partner or officemate of an assistant DA defending criminal cases
• Okla. Bar Ethics Op. 246: Judge and former partner as assistant district attorney
• Okla. Bar Ethics Op. 113: Switching sides in a school district dispute

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-266/

Original opinion text

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

Adopted April 21, 1972

OPINION

An attorney has been retained to represent the executrix of a will. The executrix has no personal interest in the estate of the deceased under either the will or under the laws of descent and distribution.

The sole legatee named under the will is an adopted child of the deceased. A contest has developed concerning the validity of the will in that two separate persons have filed claims alleging, respectively, that they were common law husbands of the deceased.

The attorneys retained to represent the executrix of the subject estate have raised the question of whether with propriety they can represent both the executrix and defend the sole legatee and devisee under the will against the claims of the two individuals asserting common law marriage relationship with the deceased.

Canon 5 of the Code of Professional Responsibility provides:

"A lawyer should exercise independent professional judgment on behalf of a client."

Ethical consideration 5-15 expands upon this basic rule:

"If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with different interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially."

Thus, if there is any likelihood of conflict, or even the appearance of conflict, then the attorney should undertake a representation of only one of the clients possessing diverse interests. Also see Canon 9, Code of Professional Responsibility.

The attorney retained to represent the executrix of the will in this case must devote his entire professional ability to the representation of the executrix. The duties of the executrix are to administer and ultimately distribute the estate of the decedent in a lawful manner. If facts develop which indicate that the will contest is well founded, the representation of the executrix would seemingly conflict with the representation which would be owed to the sole legatee and devisee under the will by his attorney.

In view of the potential for conflict of interests presented, it is the opinion of the Legal Ethics Committee that the counselor should refrain from accepting employment to represent the sole legatee and devisee under the will in this case.