Can a lawyer represent two sets of heirs with potentially conflicting claims to the same estate if both sets consent?

Plain-English summary

A lawyer was asked whether he could represent two sets of heirs to the estate of an Indian allottee who had died intestate leaving valuable real estate. One set, the B heirs, had already employed him; the other, the C heirs, also asked him to represent them. Under the law and facts, it was possible that if the B heirs succeeded the C heirs would be excluded and vice versa, or that both might succeed but with one set obtaining a larger share than the other depending on the facts. Both sets consented to his representing the other, with knowledge of the dual representation, but the lawyer noted a concern about the parties' understanding.

The Board of Governors observed that Rule 8 makes it unprofessional to represent conflicting interests except by express consent after full disclosure, so the inquirer would not violate the express language of the rule by accepting both sets, and this would be so without question if there were no doubt as to the parties' understanding. The Board concluded, however, that where there can be doubt as to the parties' full appreciation of the situation, the honor of the profession (Rule 31) would be better subserved by the lawyer's declining to represent the C heirs. It stated the duty to avoid not only impropriety but the appearance of impropriety, and that the bar as a whole would frown upon accepting the C heirs' employment.

Currency note

This opinion was issued in 1932, 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. The rules cited here, Rules 8 and 31, belong to that superseded canon-era code and do not correspond to the current Oklahoma Rules of Professional Conduct, which govern concurrent conflicts and informed consent in separate provisions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Could a lawyer represent both sets of heirs with their consent?

A: The Board found Rule 8's express language would permit it with consent after full disclosure, but concluded the lawyer should still decline the second set given doubt about the parties' understanding.

Q: Why did the Board recommend declining despite consent?

A: Because of doubt that all the parties fully appreciated the situation, the Board concluded that upholding the honor of the profession under Rule 31 and avoiding the appearance of impropriety counseled against the dual representation.

Q: Would consent have settled the matter if understanding were not in doubt?

A: The Board indicated that, without question as to the parties' understanding, accepting both sets would not violate Rule 8; the doubt about appreciation is what changed its recommendation.

Background and rules framework

The opinion applied Rule 8 of the then-current Oklahoma Rules of Professional Conduct, which permitted representing conflicting interests by express consent after full disclosure, and Rule 31, requiring lawyers to uphold the honor of the profession. The Board treated genuine doubt about the clients' appreciation of the conflict as a reason, grounded in Rule 31 and the duty to avoid the appearance of impropriety, to decline the second representation despite consent. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): it is unprofessional to represent conflicting interests except by express consent after full disclosure.
• Rule 31 (1929): a lawyer should uphold the honor and dignity of the profession.

See also

• Okla. Bar Ethics Op. 33: Switching Sides Against a Former School-District Client
• Okla. Bar Ethics Op. 28: Representing Both a Bankrupt and Creditors
• ABA Formal Op. 497: Conflicts From Materially Adverse Interests

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-44/

Original opinion text

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

Adopted November 25, 1932

The Board is in receipt of the following request for an advisory opinion:

"I am confronted with this situation:

A, an Indian allottee, died intestate, leaving valuable real estate. One set of heirs, I will call them the B heirs, have employed me to represent them. As usual there are many conflicting claimants. Another set of heirs, the C heirs, have also requested me to represent them.

Under the law and facts as I see them, it is quite possible that if the B heirs succeed the C heirs will be excluded, and vice versa. Again both the B heirs and the C heirs may succeed in their claims, but if so, upon one set of facts the B heirs would obtain a larger percentage of the property than the C heirs, and vice versa.

All the B and C heirs are full blood Indians, each individual having about the usual intelligence of full bloods. The B heirs are agreeable to my representation of the C heirs and the C heirs desire me to represent them with knowledge of my representation of the B heirs.

May I, with propriety, represent both sets of heirs?"

In response:

Rule 8 of the Rules of Professional Conduct provides:

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

It would appear, therefore, that the inquirer would not violate the express language of the rule were he to accept employment from both sets of heirs. This, of course, would be the case without question if there were no doubt as to the intelligence of all the parties concerned.

The Board, however, feels that in a case where there can be doubt as to the full appreciation of the situation by the parties concerned, the upholding of the honor of the profession (Rule 31 of Professional Conduct) would be better subserved were the inquirer to refuse to accept the employment of the "C" heirs. It is the duty of a member of the bar not only to avoid all inpropriety [sic], but also to avoid the appearance of impropriety.

The bar as a whole should, and undoubtedly would, frown upon the situation presented were the inquirer to accept employment from the "C" heirs.