Ezel / Ethics Opinions / SBAND

Could a lawyer represent a second will contestant after settling another contestant’s claim?

Short answer On the stated nonadverse claims and second client’s consent, the committee perceived no conflict. It said former-client consent under Rule 1.9(b) would be required if the second client’s interests were materially adverse to the first client.
Bar
SBAND
Issued
May 2, 1989
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1989. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The lawyer had settled a first client’s claim under a 1977 codicil and then represented a second contestant claiming under a 1952 will. Both challenged a 1985 will, but the lawyer described their recoveries as separate and nonadverse. The second client had consented to the representation.

On those facts, the committee did not perceive a conflict. It said first-client consent under Rule 1.9(b) was not required unless the second client’s interests were materially adverse to the first client; if they were, consent would be required. The committee expressly conditioned its answer on the facts supplied.

Currency note

This opinion was issued in 1989, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee find a present conflict?

A: No. It relied on the described nonadverse recoveries, shared challenge to the 1985 will, and second client’s consent.

Q: When would the first client’s consent be required?

A: The committee said it would be required if the second client’s interests were materially adverse to the first client under Rule 1.9(b).

Background and rules framework

The committee applied Rule 1.9(b) to a possible former-client conflict between the two will contestants. The requester cited other rules, but the committee’s response focused on whether the two interests were materially adverse.

Citations and references

Rules of Professional Conduct:

  • Rule 1.9(b), cited for first-client consent if the second client’s interests were materially adverse.

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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This opinion is from 1989. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

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