I drafted a will and trust for a now-deceased client and represent the trustee. The trust now needs a second co-trustee, a longtime friend I've also represented personally on unrelated matters and who belongs to my church, which may benefit from the trust. Both want me to continue as counsel. Can I, and does my proposed disclosure letter cover the ethics requirements?

Plain-English summary

The inquiring attorney had drafted a will and trust for a now-deceased individual and represented X as trustee. The trust directed that, upon the settlor's death, X be joined by a second trustee, Y, to continue the trust as a private charitable foundation. Both X and Y asked the attorney to continue as counsel for the foundation. The attorney had separately represented Y, a longtime friend and clergyman, on personal matters unrelated to the trusteeship and as holder of the decedent's health care power of attorney, and was a member of Congregation Z, which employed Y and might significantly benefit from the trust.

The attorney proposed detailed engagement letters to X and Y disclosing the various roles played over time (attorney for the decedent, the trust, X as trustee, and Y on unrelated personal matters and the health care power of attorney), identifying the trust as the primary client and X and Y as clients only with respect to trust and foundation matters, warning that in any dispute between X and Y the attorney would act only for the trust and both would need independent counsel, cautioning them not to share information they considered confidential in any such dispute since the attorney does not represent them individually, and disclosing the Congregation Z membership and life trustee position with a commitment to recuse from board business touching Y's contract or the trust and foundation.

The panel quoted Rule 1.9 in full and found the attorney's past representations of Y, including the health care power of attorney work, not substantially related to the trust and foundation matters, so the attorney could represent both X and Y as co-trustees; the attorney's representation of the decedent and the trust and the Congregation Z affiliation did not present a conflict on these facts. Turning to the proposed letters, the panel noted the Rules generally encourage or require comparable disclosures, citing Rule 1.7's consultation-and-consent requirement for common representation of multiple clients and Rule 1.13(d)'s requirement that entity lawyers clarify their role when the entity's interests are apparent adverse to a constituent's. The panel concluded the attorney's proposed disclosures, clarifying prior representations, affiliations, the attorney's role, and the limits of the attorney-client relationship and privilege, satisfied the Rules.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, prior personal representation of an individual on matters unrelated to a trust or foundation does not create a Rule 1.9 conflict against later representing that individual, jointly with a co-trustee, on the trust or foundation matter itself. The opinion also holds that a detailed, upfront engagement letter disclosing the lawyer's prior roles, identifying the entity (here, the trust) as the primary client, explaining the limits of the privilege as to individual trustees, and committing to recusal from affiliated-organization business touching the representation satisfies the Rules' disclosure expectations under Rule 1.7 and Rule 1.13(d).

Common questions

Q: I've represented someone personally in the past on unrelated matters. Can I now represent them jointly with someone else on a trust or entity matter?

A: Yes, according to this opinion, if the prior representation is not substantially related to the new trust or entity matter, per Rule 1.9's substantial-relationship test.

Q: What should an engagement letter cover when representing co-trustees or a similar multi-party entity arrangement?

A: Based on the letter the panel approved here: disclosure of all prior representations and affiliations, identification of the entity as the primary client, a clear statement that the individual trustees are clients only as to entity matters, a commitment to represent only the entity (and direct the individuals to independent counsel) if a dispute arises between them, and a warning that information shared in such a dispute is not privileged as to the lawyer.

Q: Does a lawyer's membership or leadership role in an organization that might benefit from the trust create a conflict?

A: Not necessarily, according to this opinion, if the lawyer discloses the affiliation and commits to recusing from any related organizational business touching the representation, as the attorney proposed here.

Background and rules framework

The opinion applies Rule 1.9(a), (b) (Conflict of Interest: Former Client), the Model Rule counterpart of the same number, quoted in full. It relies on Rule 1.7's consultation-and-consent requirement for common representation of multiple clients and Rule 1.13(d)'s requirement that an entity's lawyer clarify the client's identity when the entity's interests are apparent adverse to a constituent's, as models for the disclosures the attorney proposed.

Citations and references

Rules of Professional Conduct:

• MR 1.9(a), (b) (Conflict of Interest: Former Client) / RI Rule 1.9(a), (b)
• MR 1.7 (Conflict of Interest: General Rule) / RI Rule 1.7
• MR 1.13(d) (Organization as Client) / RI Rule 1.13(d)

See also

• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for an Estate or Trust
• Alabama State Bar Op. 2010-03: Representation of an Estate and Client Identity

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202005-08.pdf

Original opinion text

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

Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2005-08 Request No. 902
Issued September 22, 2005

Facts:

The inquiring attorney drafted a will and a trust on behalf of an individual, now deceased. The inquiring attorney has represented X as trustee of the trust. The trust directs that upon the death of the settler, X be joined by another individual trustee, Y, to continue the trust as a private charitable foundation. Both X and Y have requested that the inquiring attorney continue as the attorney for the charitable foundation. The inquiring attorney states that he/she is unaware of any specific disagreement between the individual trustees.

Over the years, the inquiring attorney has represented Y, a longtime friend and clergyman, on various personal matters unrelated to Y’s duties as trustee, and as the holder of the decedent’s health care power of attorney. The inquiring attorney is a member of Congregation Z, which employs Y as a clergyman, and which may be a significant beneficiary of the trust

The inquiring attorney proposes to send engagement letters to X and Y in which he/she will include disclosures such that he/she has acted at various times as attorney for the decedent, for the trust, for X as trustee, and for Y both on personal mattes unrelated to the trust, and as holder of decedent’s health care power of attorney. The inquiring attorney proposes to advise them that he regards the trust as his primary client and that X and Y as trustees are his clients, but only with regard to trust and foundation matters. He/she would advise X and Y that should any dispute arise between X and Y, or should any conduct by them be inimical to the trust, the inquiring attorney will only act on behalf of the trust, and that he/she will request that they obtain independent counsel. He/she will also advise X and Y that if a controversy relating to the trust should arise between X and Y, they should refrain from disclosing to him/her any information relative thereto which they regard as confidential and therefore subject to the attorney-client privilege, because he/she does not represent them individually. Lastly, the inquiring attorney will disclose that he is a member of Congregation Z and a life trustee of Z’s board, and that he/she will recuse from all board business relating to Y’s contract with Congregation Z, and relating to all board business to the trust and foundation. Final 2005-08 Page 2

Issue Presented:

The inquiring attorney asks whether he/she has a conflict of interest in the representation of Y, and whether his/her letter to X and Y would comply with the Rules of Professional Conduct.

Opinion:

The inquiring attorney does not have a conflict of interest under Rule 1.9 in the representation of Y as co-trustee with X, as the trust and foundation matters are not substantially related to the inquiring attorney’s prior representations of Y. The disclosures proposed by the inquiring attorney in his/her engagement letters to X and Y satisfy the ethical precepts of the Rules of Professional Conduct.

Reasoning:

Rule 1.9 sates as follows:

Rule 1.9. Conflict of Interest: Former Client. A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

The inquiring attorney’s past representations of Y, including the representation relating to the health care power of attorney for the decedent, are not substantially related to matters of the trust and the charitable foundation. Therefore, the inquiring attorney may represent X and Y as co-trustees of the trust and the foundation. The inquiring attorney’s representation of the decedent and the trust, and his/her affiliation with Congregation Z do not appear to present a conflict of interest under these facts.

Turning now to the inquiring attorney’s proposed letters to X and Y, the Panel notes that throughout the Rules of Professional Conduct, lawyers are urged, even required, to make similar disclosure to clients under various circumstances. For example, paragraph (2) of Rule 1.7 entitled “Conflict of interest: General rule,” provides that “[w]hen representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages Final 2005-08 Page 3

and risks involved.” Elsewhere, Rule 1.13 and its commentary require lawyers who represent entities to clarify the lawyer’s role when it is apparent that an entity’s interests are adverse to those of the constituents with whom the lawyer is dealing. See Rule 1.13(d).

The inquiring attorney has chosen to make disclosures regarding his/her prior representations and affiliations, and to clarify his/her role, as well as the limits of the attorney-client relationship and the attorney-client privilege, at the outset of the proposed representation. The Panel concludes that the inquiring attorney’s proposal satisfies the precepts of the Rules of Professional Conduct.