Is it a conflict of interest for a lawyer to represent the estate administrator who is also the surviving spouse claiming an elective share against the estate?

Plain-English summary

A lawyer represented the administrator of an estate, the deceased's husband, who had said there was no will. Other family members located a will, which was admitted to probate; it left the husband nothing, and he remains administrator. He chose to take his statutory elective share, and litigation arose between him and the beneficiaries over whether certain real estate belongs in the augmented estate. The committee was asked whether the lawyer has a conflict in representing the husband both as administrator and individually in claiming the elective share.

The committee relies on settled Virginia law that the client of a lawyer representing an estate is the executor or administrator, not the beneficiaries (LEOs 1452, 1599, 1720; ABA Formal Op. 94-380; Kentucky Op. 401), and that it is not a conflict to represent the same individual both as fiduciary and individually (LEO 1599). It adopts the Oregon Bar's reasoning (Oregon Formal Op. 1991-119) that representing one individual in several capacities is not the same as representing different individuals, and cites Matter of Birnbaum to the same effect. So the husband is a single client with two legal needs (his role as administrator and his election against the will). Because there is only one client, Rule 1.7(a)'s bar on adversity between clients does not apply, and Rule 1.7(b) is not triggered because no competing duty to a third person or personal interest of the lawyer is present (the lawyer owes no duties to the beneficiaries).

The committee cautions that, while there is no conflict, the lawyer must be mindful of the client's fiduciary duty to the beneficiaries; advising or assisting the client to breach that duty could violate Rule 1.2's prohibition on assisting a client in crime or fraud. Whether the administrator has breached any fiduciary duty is a legal question outside the committee's purview.

Currency note

This opinion was issued in 2003. Virginia's conflict rules and estate law may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that representing one person in both a fiduciary and an individual capacity is a single-client representation, so the multiple-client conflict provisions of Rule 1.7 do not apply, even where the spouse's elective-share claim sets him against the beneficiaries. The committee qualifies this only by noting that helping the client breach his fiduciary duty to the beneficiaries could implicate Rule 1.2's bar on assisting client crime or fraud.

Common questions

Q: Is it a conflict to represent the estate administrator who is also the spouse claiming an elective share?

A: No. The opinion concludes the lawyer has one client (the husband in two capacities), so Rule 1.7's bar on adversity between clients does not apply.

Q: Who is the lawyer's client when representing an estate, the fiduciary or the beneficiaries?

A: The personal representative. Citing LEOs 1452, 1599, and 1720 and ABA Formal Op. 94-380, the committee says the lawyer represents the executor or administrator, not the beneficiaries.

Q: Are there limits the lawyer must observe even without a conflict?

A: Yes. The committee cautions the lawyer to be mindful of the client's fiduciary duty to the beneficiaries; assisting the client in breaching that duty could violate Rule 1.2's prohibition on assisting client crime or fraud.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7; current-client conflicts, paragraphs (a) and (b)) and Rule 1.2 (Model Rule 1.2; scope of representation and the bar on assisting client crime or fraud). It applies the established principle that a lawyer for a fiduciary represents the fiduciary, not the beneficiaries.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7(a) and (b) (current-client conflicts)
• Model Rule 1.2 / Virginia Rule 1.2 (assisting client crime or fraud)

Cases:

• Matter of Birnbaum, 118 Misc. 2d 267, 460 N.Y.S.2d 706 (N.Y. Sur. Ct. 1983), no disqualification for representing an individual as executor and individually

Other opinions cited:

• Virginia LEOs 1452, 1599, 1720 (the fiduciary, not the beneficiaries, is the client)
• ABA Formal Op. 94-380 (counseling a fiduciary); Kentucky Op. 401 (1997); Oregon Formal Op. 1991-119 (one individual in several capacities)

See also

• ABA Formal Op. 94-380: Counseling a Fiduciary
• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for an Estate or Trust
• VA LEO 1806: Former-Client Conflict Through Trustees

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1778.pdf

Original opinion text

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

LEGAL ETHICS OPINON 1778

REPRESENTING ADMINISTRATOR WHO IS
TAKING HIS ELECTIVE SHARE AS SPOUSE
OF THE DECEDENT.

You have presented a hypothetical situation in which an attorney represents the administrator
of an estate. That administrator is the husband of the deceased. He presented to the attorney that
there was no will. However, other family members locate a will, which is then admitted to
probate. The will did not specify an executor, and the husband remains administrator of the
estate. The will leaves nothing to the husband. He chooses to take his statutory elective share of
the estate. Litigation ensues between the husband and the beneficiaries regarding whether
certain real estate belongs in the augmented estate.
Under the facts you have presented, you have asked the committee to opine as to whether the
attorney has an impermissible conflict of interest in representing a party as administrator and in
his individual capacity in claiming the elective share of the estate.
Specifically, your request expresses concern as to whether Rule 1.7, which governs current
conflicts of interest, prohibits this representation. Paragraph (a) of that rule outlines conflicts
involving adversity between two clients and paragraph (b) of that rule outlines conflicts
involving the competing duties between representation of a client and an attorney’s
“responsibilities to another client or to a third person, or by the lawyer’s own interests.”
This committee has established in prior opinions that the client of a lawyer who represents an
estate is the executor/administrator and not the beneficiaries. See, LEOs 1452, 1599 (approved
by Bar Council 1995), 1720. Similarly, the ABA has opined that “the fact that the fiduciary
client has obligations toward the beneficiaries does not impose parallel obligations on the lawyer,
or otherwise expand or supersede the lawyer’s [ethical] responsibilities.” ABA Formal Op. 94380. See also, Kentucky Eth. Op. 401 (1997) (concluding that a lawyer’s representation of a
fiduciary imposes no special duties to the beneficiaries of the trust or estate). Furthermore, this
committee has explained that it is not a conflict to represent the individual serving as
executor/administrator both in that role and individually. See LEO 1599 (approved by Bar
Council 1995).
This committee considered whether Rule 1.7's provisions regarding conflicts of interest among
clients has any application to the present situation. This committee concludes that the Oregon
Bar’s analysis on this point is persuasive. The Oregon Bar opined:
An attorney for a personal representative represents the personal representative
and not the estate or the beneficiaries as such. It follows that when Attorney A
represents Widow as an individual and Widow in her capacity as personal
representative, Attorney A has only one client. Alternatively stated, the fact that
Widow may have personal interests that may conflict with her fiduciary
obligations does not mean that Attorney A has more than one client. For purposes
of the rules regarding multiple client conflicts of interest, representing one
individual in several different capacities is not the same thing as representing
different individuals.
Oregon Formal Ethics Op. 1991-119. Similarly, in denying a motion to disqualify an attorney
from representing an individual both in her capacity as executor and as an individual, a New
York court notes that, “it would be unnecessary and wasteful to require yet another firm be hired
to represent her in her individual capacity.” Matter of Birnbaum, 118 Misc.2d 267, 460
N.Y.S.2d 706, 709 (N.Y. Sur. Ct. 1983). Agreeing with those opinions, this committee
concludes that the attorney in the present hypothetical has only one client: the deceased’s

husband. While that client may have two legal needs, his role as administrator and his choice to
elect against the will, he remains only one client. Therefore, representation of this husband on
these matters cannot trigger the prohibition of Rule 1.7(a)’s provisions regarding adversity
between two or more clients.
Paragraph (b) of Rule 1.7 similarly is not triggered by this attorney’s representation of the
husband. That provision would only be triggered if the attorney had some additional, competing
duty to another client or a third person or a competing personal interest of his own. No such
personal interest has been suggested. As for a competing duty to anyone else, this attorney’s
duty in representing this estate is solely that of representing the husband individually in his role
as executor, with no concomitant duties to the beneficiaries. That representation itself creates no
competing duties. Rule 1.7(b) does not prohibit this representation. This committee does not
find a conflict of interest for this attorney under Rule 1.7 as he has only one client.
In opining that there is no conflict of interest in representing the husband in his various legal
needs, this committee cautions the attorney, nonetheless, to be mindful of the client’s fiduciary
duty to the beneficiaries. Were the attorney to advise or assist his client in actions that breach
the husband’s fiduciary duty, he could be in violation of Rule 1.2's prohibition against assisting a
client in criminal activity or fraud. Whether the administrator in this hypothetical has in any way
breached his fiduciary duty is a legal question outside the purview of this committee.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
May 19, 2003