Could the lawyers who drafted a client's will later represent a claimant seeking to share in the estate against the terms of that will?

Plain-English summary

A firm of lawyers had drawn a will for "C." After C died and the will was admitted to probate (the firm neither filed the probate proceeding nor represented the executor), "M" consulted those lawyers, saying she was C's common-law wife, was not mentioned in the will, and wished to apply to share in the estate as the wife. The question was whether the lawyers who drew the will were disqualified from representing M.

The Board concluded that representing M would be inconsistent with the lawyers' prior relation to the decedent, and that they could not with propriety represent her. It gave two reasons. First, the representation would contravene the implied, if not express, prohibition of Rule 8, which interdicted the representation of conflicting interests, because the lawyers would be contending for a disposition of C's estate contrary to the terms of the will they had prepared for C. Second, under Rule 31 a member of the bar must avoid not only impropriety but the appearance of impropriety and uphold the honor and dignity of the profession; accepting M's employment to defeat the expressed intent of their former client would tend to bring reproach upon the profession.

The Board quoted, with approval, Opinion 83 of the American Bar Association's Committee on Professional Ethics and Grievances for the proposition that personal sacrifice of financial reward in such a case adds to professional honor and marks the distinction between a trade and a profession.

Currency note

This opinion was issued in 1934, 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 The rules cited here, Rules 8 and 31, belong to that superseded canon-era code, though their core principles, that a lawyer must not represent conflicting interests and must avoid the appearance of impropriety toward a former client, persist in the modern conflict-of-interest and former-client rules. 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 Treat this page as historical context, not current guidance.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: Could lawyers who drafted a will represent a claimant trying to share in the estate against the will?

A: No. The opinion concluded that doing so would be inconsistent with their prior relation to the decedent and that they could not with propriety undertake the representation.

Q: Which rules did the Board rely on?

A: Rule 8, barring the representation of conflicting interests, and Rule 31, requiring members to avoid the appearance of impropriety and uphold the honor and dignity of the profession.

Q: Did it matter that the firm never represented the executor or filed the probate?

A: No. The conflict arose from the lawyers' prior relation to the decedent in drafting the will, not from any role in the probate; representing the claimant would contend against the will they had drawn for their former client.

Background and rules framework

The opinion applied Rule 8 (interdicting the representation of conflicting interests) and Rule 31 (avoiding the appearance of impropriety and maintaining the honor and dignity of the profession) of the canon-era Oklahoma Rules of Professional Conduct, both drawn from the ABA Canons of Professional Ethics. It also drew on ABA Committee on Professional Ethics and Grievances Opinion 83. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): interdicting the representation of conflicting interests.
• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a member of the bar must avoid the appearance of impropriety and uphold the honor and dignity of the profession.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances Opinion 83: personal sacrifice of financial reward in such a case adds to professional honor and dignity.

See also

• Okla. Bar Ethics Op. 59: Estate counsel representing an heir or claimant
• Okla. Bar Ethics Op. 28: Representing both the bankrupt and the creditors

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-73/

Original opinion text

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

Adopted June 22, 1934

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

"'C' employs a firm of lawyers to write his will. Some months after the will is written, 'C' dies. The executor named in the will is appointed, and the will admitted to probate. The firm of lawyers who wrote the will did not file the probate proceedings nor do not represent the executor. After the will is filed for probate, 'M' consults the lawyers who wrote the will, advising that she is the common law wife of 'C'. She is not mentioned in the will, and desires to file an application to share in the estate as the wife.

Are the lawyers who drew the will for 'C' during his lifetime and who do not represent the executor, disqualified from representing 'M', who claims to be the common law wife?"

In response:

The Board is of the opinion that the representation of 'M' by the attorneys who drew the will would be inconsistent with their prior relation to the decedent; and it is, therefore, of the opinion that the attorneys who drew the will cannot, with propriety, represent 'M'.

Two considerations prompt this conclusion.

First: to represent 'M' under the circumstances would contravene the implied, if not the express, prohibition of Rule 8 of the rules of professional conduct, which rule interdicts the representation of conflicting interests; it would be the duty of the lawyers to contend on behalf of 'M' for a disposition of the estate of 'C' contrary to the terms of the will which they prepared as attorneys for 'C'.

Second: It is the duty of a member of the bar, not only to avoid all impropriety, but also to avoid the appearance of impropriety and (Rule 31) to strive, at all times, to uphold the honor and to maintain the dignity of the profession. Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession. For obvious reasons, the acceptance of employment from 'M', under the conditions presented, would so tend. Confidence with reference to the disposition of his estate had been reposed by 'C' in the lawyers who drew his will. It is not seemly that those lawyers should subsequently accept employment from others, the object of which is to defeat the expressed intent and purpose of their former client. As stated in opinion 83 of the Committee on Professional Ethics and Grievances of the American Bar Association, personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem; it marks the clear distinction between a trade or business and a profession.