Can a lawyer who served as co-administrator of an estate later represent a party in litigation against that estate over the same assets?

Plain-English summary

Alice died intestate, survived by her sister Bernice and nephew Carl, and held several joint bank accounts with survivorship naming Bernice and Bernice's daughter Dottie. Bernice's lawyer (Lawyer One) and Carl's lawyer (Lawyer Two) qualified as co-administrators of Alice's estate. After Carl discharged Lawyer Two, both lawyers were granted leave to resign as co-administrators, and Lawyer Three was appointed successor administrator. Carl had directed the co-administrators to determine whether the joint accounts passed by survivorship. Bernice then died, and Dottie qualified as executrix of Bernice's estate. The committee was asked whether Lawyer One could now represent Dottie (as Bernice's executrix and individually) in litigation over Alice's joint accounts, and whether he could represent Bernice's estate in a partition suit over Alice's real estate.

The controlling rule was DR 5-105(D): a lawyer who represented a client in a matter may not later represent another person in the same or a substantially related matter where that person's interest is adverse in any material respect to the former client, absent consent after disclosure. The committee noted Carl was not a former client (he had retained Lawyer Two), and that the client of a lawyer for an estate is the administrator, not the beneficiaries (LEO 1452). Because Lawyer One had been co-administrator, he was, for practical purposes, his own former client. His proposed representation of Dottie over the joint accounts was adverse to Alice's estate (success would divert the accounts from the estate to Dottie) and substantially related to his former role, since as co-administrator he may have had to report the accounts on the inventory and had a right and, on request, a duty to assert a claim to them (Carl had in fact demanded such action).

Applying the fact-specific substantial-relatedness inquiry (LEO 1652), the committee concluded Lawyer One could not, without the successor administrator's consent, represent Dottie in litigation contesting Alice's estate's interest in the joint accounts. The partition question was different: because Alice died intestate, title to her real estate vested in her heirs at death, and absent a court-awarded power of sale the real estate was never an asset of the probate estate the co-administrators controlled. That real estate was therefore not implicated in Lawyer One's former role, so he could represent Bernice's executrix in the partition litigation. The committee limited its opinion to DR 5-105(D) and noted that the common-law fiduciary duties Lawyer One owed as co-administrator were legal questions beyond its purview.

Currency note

This opinion was issued in 1998, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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, statute, or requirement mentioned here.

Common questions

Q: Can a lawyer who administered an estate later sue that estate over the same assets?

A: Under this 1998 opinion, not without consent. The committee held a lawyer who had been co-administrator could not, absent the successor administrator's consent, represent a party in litigation over the estate's joint accounts, because that matter was substantially related to and adverse to his former role (DR 5-105(D)).

Q: Who is the client when a lawyer represents an estate, the administrator or the beneficiaries?

A: The administrator. Citing LEO 1452, the committee noted the client is the executor or administrator, not the beneficiaries, though a lawyer must disclose his role if beneficiaries appear to regard him as their lawyer (LEO 1599).

Q: Why could the lawyer still handle the partition suit over the real estate?

A: Because Alice died intestate, title to her real estate vested in her heirs at death, and absent a court-awarded power of sale it was never an asset of the probate estate the co-administrators controlled. The committee concluded it was not implicated in Lawyer One's former role, so that representation was permissible.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility, DR 5-105(D) (former-client conflict; the analogue of Rule 1.9), applying a fact-specific substantial-relatedness inquiry. It treats the estate's administrator, not the beneficiaries, as the client, and notes Virginia statutes on a co-administrator's duties regarding multiple-party accounts (Va. Code §§ 26-12, 64.1-140, 6.1-125.8) and intestate real estate.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-105(D) (former-client conflict; Code of Professional Responsibility; analogue of Rule 1.9)

Statutes:

• Va. Code § 26-12 (inventory of estate assets); §§ 64.1-140, 6.1-125.8 (multiple-party accounts); § 8.01-2 (fiduciary)

Cases:

• Yamada v. McLeod, 243 Va. 426 (1992); Stark v. City of Norfolk, 183 Va. 282 (1944), vesting of intestate real estate in heirs.

Other opinions cited:

• Virginia LEO 1452: the client of a lawyer for an estate is the administrator, not the beneficiaries.
• Virginia LEOs 1599, 1652: disclosure of the lawyer's role; substantial-relatedness inquiry.

See also

• VA LEO 1762: Child's Injury Claim vs Ex-Client Mother
• VA LEO 1769: Guardianship Conflict With Own Client

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1720.pdf

Original opinion text

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

Committee Opinion
December 2, 1998
LEGAL ETHICS OPINION 1720

CONFLICTS OF INTEREST; ESTATES,
BENEFICIARIES, BENEFICIARIES'
ESTATES.

You have presented a hypothetical situation in which Alice died intestate owning
personal property and real estate. Alice was survived by her sister, Bernice, and her
nephew, Carl, as her heirs and distributees.
Alice was a party to several joint bank accounts with survivorship at the time of her
death. Alice had created a substantial number of those joint bank accounts in the name of
herself and/or Bernice and in the name of herself and/or her niece, Dottie, who was
Bernice's daughter. The value of Alice's gross estate is substantial, and estate taxes will
be due, including estate taxes that are apportioned pro rata to the survivors on the joint
bank accounts.
Bernice retains Lawyer One; Carl retains Lawyer Two. Lawyer One and Lawyer Two
qualify as co-administrators of Alice's estate by agreement of Bernice and Carl. During
the course of administration, Carl discharges Lawyer Two and askshim to resign as coadministrator. Both Lawyer One and Lawyer Two move the Court for leave to resign as
co-administrators of Alice's estate. The Court grants them leave to resign and appoints
Lawyer Three as successor administrator of Alice's estate.
Between the date of the hearing at which Lawyer One and Lawyer Two were granted
leave to resign and the date the Court entered its order memorializing its ruling, Carl and
his new lawyer give a notice to Lawyer One and Lawyer Two directing them to take legal
action for a determination of whether Alice's joint bank accounts with Bernice and
Dottie, respectively, were owned with survivorship. Bernice then dies, and Dottie
qualifies as executrix of her estate.
Based on the hypothetical facts presented, you have asked the committee to opine
whether it is ethically permissible for Lawyer One to represent Dottie as executrix of
Bernice's estate and individually in litigation over Alice's joint bank accounts when
Lawyer One had been a co-administrator of Alice's estate. You have also asked whether
Lawyer One is permitted to represent Bernice's estate in litigation over a partition of real
estate that Alice owned at her death.
The appropriate and controlling Disciplinary Rule relative to your questions presented
is DR:5-105(D) as follows:
A lawyer who has represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter if the interest of that person
is adverse in any material respect to the interest of the former client unless the former
client consents after disclosure.

Committee Opinion
December 2, 1998
On the facts presented, Carl is not a former client of Lawyer One since Carl had
retained Lawyer Two to represent him and serve as co-administrator of Alice's estate with
Lawyer One. Moreover, the committee has previously opined that the client of a lawyer
who represents an estate is the executor/administrator and not the beneficiaries. See LE
Op. 1452. The committee has observed, however, that a lawyer representing an estate
must make appropriate disclosure of his role if he/she has reason to believe that the
beneficiaries look on him as “their lawyer.” LE Op. 1599.
Since Lawyer One was co-administrator of Alice's estate, he was his own client for
practical purposes. Viewed in that posture, his representation of Dottie, as executrix of
Bernice's estate and individually, in litigation over survivorship of Alice's joint bank
accounts turns on whether the matter is, under DR:5-105(D), substantially related to his
former representation as co-administrator of Alice's estate and is adverse to Alice's estate.
Adversity seems to be apparent. If Lawyer One's representation of Dottie is successful,
Alice's estate will not receive the funds on deposit in the joint bank accounts: Instead,
they will pass by survivorship to Dottie, as executrix of Bernice's estate and to Dottie
individually.
Substantial relatedness between the matters in a former representation and a current
representation is a fact-specific inquiry from case to case. LE Op. 1652. In previous
opinions, substantial relatedness depended upon whether the same parties, the same
subject matter, or the same issues were present. The committee referred to cases defining
substantial relatedness in terms of the matters or the issues being essentially the same,
arising from substantially the same facts, being byproducts of the same transaction, or
entailing a virtual congruence of issues or patently clear relationships in subject matter.
Id.
Applying those principles of substantial relatedness, the committee concludes that
Lawyer One's representation of Dottie, individually and as executrix of Bernice's estate,
in litigation over survivorship of Alice's joint bank accounts would be substantially
related to Lawyer One's former representation as co-administrator of Alice's estate. The
committee's understanding is that Lawyer One as co-administrator of Alice's estate may
have been required to report Alice's interest in multiple party accounts on the inventory
of her estate. See Va. Code § 26-12. The committee understands, too, that Lawyer One as
co-administrator had a right and upon appropriate request, a duty to assert a claim to the
joint bank accounts. Va. Code §§ 64.1-140 and 6.1-125.8. In fact, Carl had given notice
to Alice's co-administrators to take action establishing whether survivorship existed. In
short, the joint bank accounts, which are the subject of Lawyer One's representation of
Dottie, as Bernice's executrix and individually, were implicated in his representation as
co-administrator of Alice's estate in significant respects.
The committee is of the opinion, therefore, that under DR:5-105(D) it is not ethically
permissible for Lawyer One, without consent from Alice's successor administrator, to
represent Dottie as Bernice's executrix and individually in litigation that contests the
interest of Alice's estate in the joint bank accounts.

Committee Opinion
December 2, 1998

Whether Lawyer One may represent Bernice's executrix in litigation over partition of
Alice's real estate is a distinct issue. Alice died intestate. If title to her intestate real estate
vested in her heirs upon her death, and if her co-administrators did not obtain a courtawarded power of sale over the real estate, then the real estate was never an asset of her
probate estate for administration by or subject to the control of Lawyer One and Lawyer
Two as co-administrators. See Yamada v. McLeod, 243 Va. 426 (1992); Stark v. City of
Norfolk, 183 Va. 282 (1944); Epps v. Demoville, 6 Va. (2 Call.) 22 (1799).
Under those circumstances, Alice's intestate real estate was not implicated in Lawyer
One's representation as co-administrator. The committee is of the opinion, therefore, that
it is ethically permissible for Lawyer One to represent Bernice's executrix in litigation
over the partition of Alice's intestate real estate.
The opinions expressed are limited to the application of DR:5-105(D). The committee
notes that as co-administrator of Alice's estate, Lawyer One was a fiduciary. Va. Code §
8.01-2. The content and scope of common law duties owed by a fiduciary to the estate
and its beneficiaries, and the effect of such duties on the questions presented, are legal
issues beyond the purview of the committee.
Committee Opinion
December 2, 1998