Can the attorney for an estate's executor or administrator also represent a claimant or one heir against the estate or another heir?

Plain-English summary

The Board was asked whether an attorney for the executor or administrator of an estate may, with propriety, represent a claimant against the estate, or one person claiming to be an heir in opposition to another claimed heir. It began from the well-settled rule that an attorney who has acted for one side may not professionally serve the other side in the same matter, and may never assume a position hostile to his client and inimical to the interest he was engaged to protect.

Applying that rule, the Board drew three lines. First, counsel for an executor or administrator is precluded from representing any heir to supervise the administrator's proceedings, and equally precluded from representing any creditor of the deceased, whether the claim sounds in contract or tort. Second, if the administrator or executor is himself an heir or devisee, counsel is also disqualified from representing any other heir in a dispute over the inheritance or devise where there is a conflict with the administrator's own claim. Third, if the administrator or executor has no interest in the estate beyond his official capacity, counsel is not disqualified from representing an heir or devisee in a controversy strictly between co-heirs or co-devisees that does not involve the duties of the administrator or executor.

Currency note

This opinion was issued in 1933, 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. Conflicts of interest and the duties owed to a current or former client are governed today by separate provisions of the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Can the estate's attorney represent a creditor with a claim against the estate?

A: No. The Board concluded counsel for the executor or administrator is precluded from representing any creditor of the deceased, whether the claim arose in contract or tort.

Q: Can the estate's attorney represent one heir against another?

A: It depends on the administrator's interest. If the administrator is himself an interested heir, counsel is disqualified where there is a conflict with the administrator's claim; if the administrator has only an official interest, counsel may represent an heir in a dispute strictly between co-heirs that does not involve the administration.

Q: What was the general rule the Board started from?

A: That an attorney who has acted for one side may not serve the other side in the same matter and may never take a position hostile to his client and against the interest he was engaged to protect.

Background and rules framework

The opinion did not rest on a numbered Rule of Professional Conduct. It applied the general loyalty rule that a lawyer may not turn against the interest he was retained to protect, and worked out its application to estate administration by distinguishing the administrator's purely official role from a personal interest as an heir or devisee.

Citations and references

Rules of Professional Conduct:

• The opinion does not cite a numbered Rule of Professional Conduct; it applies the general rule against representing interests adverse to one's own client.

See also

• Okla. Bar Ethics Op. 44: Representing Two Sets of Heirs With Conflicting Claims
• Okla. Bar Ethics Op. 28: Representing Both a Bankrupt and Creditors
• Okla. Bar Ethics Op. 56: Defending a Suit Brought Against a Former Client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-59/

Original opinion text

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

Adopted October 27, 1933

The Board is in receipt of a request for an advisory opinion upon the point as to whether or not an attorney for an executor or administrator of an estate may with propriety represent a claimant against the estate or a person claiming to be an heir of the deceased whose estate is being administered in opposition to another person also claiming to be an heir of the deceased.

It is the general and well settled rule that an attorney who has acted as such for one side, may not render services professionally in the same case to the other side, nor in any event whether it is in the same case or not, may he assume a position hostile to his client and one inimical to the very interest he was engaged to protect.

This general rule applied to an attorney for an executor or administrator of an estate of a deceased person precludes that attorney from representing any heir for the purpose of supervising the proceedings of the administrator or executor with reference to the estate, and the attorney is equally precluded from representing any person claiming as a creditor of the deceased whether the claim arose out of contract or tort.

If the administrator or executor is an heir at law or devisee of the deceased person, his counsel is also disqualified to represent any other heir in any dispute involving the inheritance or devise where there is a conflict of interest with the claim of the administrator or executor as an heir or devisee.

If the administrator or executor has no interest in the estate under administration other than in his official capacity as such administrator or executor, his counsel is not disqualified to represent an heir at law or a devisee in any controversy strictly between co-heirs or co-devisees and not involving the duties of the administrator or executor.