Ezel / Ethics Opinions / SBAND

May estate counsel represent an attorney whose malpractice defense could reduce recovery on an estate bond?

Short answer The committee said Rule 1.7(a) barred the proposed representation because the estate could benefit from the malpractice recovery, creating adverse responsibilities. Consent from both clients did not cure that conflict.
Bar
SBAND
Issued
September 4, 1997
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1997. 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 represented an estate whose asset included a defaulted bond and separately had represented an attorney sued for malpractice in a transaction connected to the bond. The lawyer wanted to assist that attorney in pretrial depositions.

The committee found the estate’s financial interest could benefit from a successful malpractice suit, making the two representations adverse under Rule 1.7(a). It also said confidential communications from the lawyer’s earlier representation of the sued attorney remained protected, while information learned apart from the attorney-client role could be discussed or testified to.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 both clients’ consent permit the proposed defense?

A: No. The committee said the likely adverse effect on the estate made Rule 1.7(a) prohibitive.

Q: Were all facts the lawyer knew privileged?

A: No. It distinguished confidential attorney-client communications from information acquired through separate social or community activity.

Background and rules framework

The opinion discusses North Dakota Rules 1.7(a), 1.6 in addressing the stated request.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.7(a).
  • North Dakota Rule 1.6.

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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