Can a firm that represented both co-executors take one of them against the other once they disagree about settling the estate?

Plain-English summary

H died in Arkansas, where his will was probated; the Texas firm of West & South handled the Texas ancillary proceeding, and H's children Ha and Ho were the executors in both states. With all claims paid and the estate ready to close, Ha and one devisee disagreed with Ho and two devisees about the method of settlement and distribution. West & South agreed with Ha's position, and asked whether they could represent Ha and the one devisee against Ho and the others to force settlement and distribution.

The Committee answered no. Having represented Ho as well as Ha in the Texas proceeding, West & South could not, in connection with that matter, represent any interest adverse to either Ho or Ha. The Committee cited Canon 6 and A.B.A. Opinion 167 (1937), and quoted Drinker's Legal Ethics: when the interests of clients diverge and become antagonistic, their lawyer must be absolutely impartial between them, which usually means that, unless they all wish him to continue, he may represent none of them. The vote was 9-0.

Currency note

This opinion was issued in 1964, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a firm side with one co-client against another when they fall out?

A: The Committee said no. Having represented both co-executors, the firm could not represent one against the other in the same estate matter under Canon 6.

Q: What happens to the firm when the co-clients' interests diverge?

A: Quoting Drinker, the Committee said the lawyer must be absolutely impartial, which usually means that, unless all the clients want him to continue, he may represent none of them.

Q: Did the firm's agreement with one client's position change the result?

A: No. That West & South agreed with Ha's view of settlement did not let them take Ha's side; the prior joint representation barred any interest adverse to either co-client.

Background and rules framework

The opinion interprets former Texas Canon 6, which made it unethical to represent conflicting interests. The modern analog is ABA Model Rule 1.7 (concurrent conflicts of interest), which governs a lawyer's duties when jointly represented clients become adverse.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• Texas Canon 6 (former canon)

Other opinions cited:

• A.B.A. Opinion 167 (1937): cited on representing diverging clients
• Drinker, Legal Ethics 112: quoted on the lawyer's duty of impartiality between clients

See also

• TX Ethics Op. 295: One Attorney for Two Taxing Agencies in a Tax Suit
• TX Ethics Op. 314: Representing Both a Minor's Guardian and the Father in One Suit
• TX Ethics Op. 299: Suing a Defendant the Firm Represents in a Comp Claim

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-288/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_288.pdf

Original opinion text

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

QUESTION PRESENTED

H died in Arkansas, where his will was probated by the Arkansas firm of North & East. The Texas firm of West & South handled the Texas ancillary proceeding. H's children, Ha and Ho, were the executors in Texas as well as in Arkansas. All claims have been paid and the estate is ready to be closed. Ha and one devisee disagree with Ho and two devisees as to the method of settlement and distribution. West & South agree with the position taken by Ha; may they represent Ha and the one devisee against Ho and the other devisees in forcing settlement and distribution of the estate?

18 Baylor L. Rev. 356 (1966)

CONFLICTING INTERESTS - DISAGREEMENT BETWEEN TWO CLIENTS
When the interests of two clients of a law firm become divergent in regard to the matter being handled by the firm, the law firm may not represent one client against the other.

Canon 6.

No. West & South, having represented Ho as well as Ha in the Texas proceeding, may not represent in connection therewith any interest adverse either to Ho or Ha. See Canon 6 and A.B.A. opinion 167 (1937). Drinker, Legal Ethics 112 says, "When the interests of clients diverge and become antagonistic, their lawyer must be absolutely impartial between them, which, unless they both or all desire him to represent them both or all, usually means that he may represent none of them." (9-0.)

Tex. Comm. On Professional Ethics, Op. 288 (1964)