Ezel / Ethics Opinions / SBAND

Could a lawyer represent a wife in divorce after the firm had drafted her husband's father's will and trust?

Short answer The committee said the husband was not the firm's client merely because he was trustee under his father's will or had requested files. Representation of the wife did not violate the rules so long as the firm's earlier work had not yielded confidential information about the husband relevant to the divorce.
Bar
SBAND
Issued
March 24, 1994
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1994. 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

Years before a divorce, the law firm had drafted the husband's father's will and testamentary trust. The father later died, and the husband, named as trustee, had not been represented by the firm. After the divorce began, the husband requested a copy of his father's files and asked about the trust's intent.

The committee said the husband's trusteeship did not make him a derivative client of the lawyer who represented the father. The firm had provided him no advice, and sending the files did not establish a new attorney-client relationship. Rule 1.9 therefore did not apply to him as a former client.

The committee found no disqualifying conflict in representing the wife under Rule 1.7, provided the earlier representation of the father had not given the firm confidential information about the husband relevant to the divorce.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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 husband become a client merely by being trustee of his father's trust?

A: No. The committee found no attorney-client relationship from the firm's work for his father.

Q: Did the request for a file copy establish a new attorney-client relationship?

A: No. The committee said the firm gave the husband no legal advice and only supplied the file copy.

Q: What fact could change the conflict analysis?

A: Relevant confidential information about the husband obtained during the firm's representation of the father could require a different result.

Background and rules framework

The opinion considers North Dakota Rule 1.9 on former clients and Rule 1.7 on the claimed conflict from earlier representation.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rules 1.9 and 1.7.

See also

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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