Do two lawyers on opposite sides of a will probate have a conflict when their firms are negotiating a merger?

Plain-English summary

Attorney A's firm represented an estate and its personal representative and filed an action for formal probate of a will. Attorney B's firm represented the beneficiaries under the will and filed an Answer joining in the prayer for relief. The decedent's heirs, represented by other counsel, answered and counterclaimed contesting the will. After Attorney B filed his Answer, Attorneys A and B began negotiating to merge their firms, agreeing to merge in about four months, while the litigation was expected to remain active. The questions were whether either attorney had a conflict, and if so, when it arose and whether it could be waived.

The committee applied Rule 1.7(b) and its Comment 4, which permits common representation of persons with similar interests if the risk of adverse effect is minimal and paragraph (b)'s requirements are met. It concluded that when merger discussions reach a formal stage, the lawyers' interests in the merger and in staying on good terms may materially limit their representation. Each lawyer must not let his personal interest interfere: he must avoid delaying work on the file or recommending a less aggressive course than he otherwise would, and must avoid revealing client confidences during discussions about their respective client bases.

The committee added that after the merger the combined firm would simultaneously represent the estate, the personal representatives, and the beneficiaries, and that there is no inherent prohibition on representing both an estate and prospective beneficiaries, provided the representation complies with Rule 1.7. As long as the clients seek identical relief, there is no conflict, only the potential for one, and the lawyers may reasonably believe the representation will not be adversely affected; both sides' consent should be obtained after consultation. If the clients' positions become adverse, an actual conflict would arise that could materially interfere with either lawyer's independent professional judgment.

Currency note

This opinion was issued in 2000, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: When does a conflict arise from two opposing lawyers' firms merging?

A: The committee concluded the concern arises when merger discussions reach a formal stage, at which point the lawyers' interest in the merger may materially limit their representation under Rule 1.7(b).

Q: What must each lawyer avoid during merger talks?

A: The committee stated each must not let the merger cause him to delay work, recommend a less aggressive course than he otherwise would, or reveal client confidences while discussing their respective client bases.

Q: Can the merged firm represent both the estate and the beneficiaries?

A: The committee concluded there is no inherent prohibition: while the clients seek identical relief there is only a potential conflict, and the representation may continue with both sides' consent after consultation, but adverse positions would create an actual conflict.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7(b) (conflicts where representation may be materially limited by the lawyer's own interests; reasonable belief plus client consent after consultation) and its Comment 4 on common representation of persons with similar interests, corresponding to Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: conflicts of interest; material limitation by the lawyer's own interests.

See also

• SC Bar Ethics Op. 00-07: Lawyer-Trustee Conflict
• SC Bar Ethics Op. 00-12: Two Drivers, One Crash

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-13/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 00-13

Attorney A's firm represents an estate and its personal representative. Attorney A filed an action for formal probate of a will. Attorney B's firm represents the beneficiaries under the will. Attorney B has filed an Answer joining in the prayer for relief. Decedent's heirs, represented by other counsel, have answered and counterclaimed contesting the will. After Attorney B filed his Answer on behalf of his clients, Attorneys A and B began negotiations to merge their law firms. They have agreed to merge in approximately four months, at which time the ongoing litigation is expected to still be active.

Questions:
1.Do Attorneys A or B have a conflict of interest?
2.If so, when did it arise and can it be waived?

Opinion:
Rule 1.7(b) reads: "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

1. The lawyer reasonably believes the representation will not be adversely affected; and

2. The client consents after consultation. When 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 and risks involved."

Comment 4 goes on to add " . . . common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met."

When merger discussions reach a formal stage, the lawyers' interests in the merger and in staying on good terms with each other may materially limit the lawyers' representation of their clients. A lawyer is obliged to not allow his personal interest to interfere in his representation. He must be sure the proposed merger does not cause him to delay work on the file or recommend pursuit of a course of action less aggressive than he would otherwise have proposed. He must be careful not to reveal any confidences of the client during the discussions concerning their respective client base.

Following the merger of their law firms, Attorneys A and B would simultaneously represent the estate, personal representatives and the beneficiaries under the will. There is no inherent prohibition on a lawyer representing both the estate and the prospective beneficiaries. Their representation of these multiple interests, however, must comply with Rule 1.7. As long as the clients of Attorneys A and B are seeking identical relief, there is no conflict of interest, but only the potential for one, and the lawyers may reasonably believe the representation will not be adversely affected. Both sides' consents should be obtained after consultation. If their positions become adverse, there would then be a conflict of interest which could materially interfere with either lawyer's independent professional judgment.