If a lawyer drafted a client's will, can that lawyer or the lawyer's firm later serve as the estate's personal representative and also act as its attorney?

Plain-English summary

The inquiry asked whether a firm serving an estate as personal representative and performing legal services for that estate would create a conflict of interest under RPC 1.7, 1.8, and 1.9, or would violate the duty to exercise independent professional judgment under RPC 2.1. The committee consulted the Real Property, Probate and Trust Section before answering.

The committee concluded that it is not expressly prohibited for a lawyer who is the personal representative (and/or that lawyer's firm) to act as attorney for the personal representative, provided that the lawyer complied with RPC 1.8(a)(1), (2), and (3) at the time the will was drafted. The opinion tied the permissibility of the later dual role back to the lawyer's compliance with the business-transaction-with-a-client safeguards in RPC 1.8(a) when the will was prepared.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.7, 1.8, 1.9, and 2.1 correspond to ABA Model Rules 1.7 (conflicts of interest), 1.8 (specific conflicts, including business transactions with a client), 1.9 (duties to former clients), and 2.1 (advisor).

Common questions

Q: Can a lawyer who drafted a will later serve as the estate's personal representative and its attorney?

A: The committee concluded the Rules of Professional Conduct do not expressly prohibit it, provided the lawyer complied with RPC 1.8(a)(1), (2), and (3) when the will was drafted.

Q: What condition did the committee attach to that conclusion?

A: Compliance with RPC 1.8(a)(1), (2), and (3) (the safeguards for a business transaction with a client) at the time the will was drafted.

Q: Which rules did the committee consider?

A: The inquiry was framed under RPC 1.7, 1.8, and 1.9 (conflicts of interest) and RPC 2.1 (independent professional judgment); the committee resolved it by reference to RPC 1.8(a).

Background and rules framework

The opinion considered Washington RPC 1.7, 1.8, and 1.9 (conflicts of interest) and RPC 2.1 (the duty to render independent professional judgment), which correspond to ABA Model Rules 1.7, 1.8, 1.9, and 2.1. The committee made the analysis turn on whether the lawyer had complied with the business-transaction safeguards of RPC 1.8(a)(1), (2), and (3) at the time the will was drafted.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7
• ABA Model Rule 1.8 (specific conflicts; business transactions with a client); Washington RPC 1.8(a)(1), (2), (3)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9
• ABA Model Rule 2.1 (advisor; independent professional judgment); Washington RPC 2.1

See also

• WA Ethics Op. 1789: Nonprofit Lawyer Meeting Donors
• WA Ethics Op. 1807: LLC Counsel vs. a Minority Member
• WA Ethics Op. 1793: Office-Sharing and Adverse Clients

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1002

Original opinion text

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

Advisory Opinion: 1809
Year Issued: 1998
RPC(s): 1.7; 1.8; 1.9
Subject: Conflict of interest; firm represents estate as personal representative when one of the firm's lawyers prepared the will

The inquiry concerns whether a firm serving an estate as personal representative and performing legal services for the estate would constitute a conflict of interest within the meaning of RPC 1.7, 1.8, and 1.9, or violate the duty as an attorney to provide independent professional judgment, as required by RPC 2.1.

The committee apologizes for the delay in responding to the inquiry but the committee wished to consult with the Real Property, Probate and Trust Section because the inquiry deals with that area of practice. A member of the Section wrote on September 20, 1999 stating the Section's position, which was considered by the committee in reaching its decision.

It is not expressly prohibited by the Rules of Professional Conduct for a lawyer /personal representative for that lawyer and/or that firm to act as attorney for the personal representative, provided that the lawyer complied with RPC 1.8(a)(1), (2) and (3) at the time the will was drafted.