Can a lawyer who represented a now-deceased client probate that client's estate for the personal representative, who is the client's spouse and sole heir?

Plain-English summary

The inquiring lawyer had represented an alleged incompetent person (AIP) in opposing his daughter's attempt to establish a guardianship. The AIP died before the guardianship hearing, and his surviving spouse, who is the designated personal representative and sole heir, asked the lawyer to probate the estate. The lawyer asked whether it is a conflict to represent the personal representative in that probate.

The opinion concludes that, based on the limited facts presented, the Rules of Professional Conduct do not prohibit the lawyer of a deceased former client from representing the personal representative of the estate where that representative is also the former client's spouse and sole heir.

The opinion then identifies circumstances that could obligate the lawyer to withdraw: if the lawyer acquired information that would jeopardize, compromise, influence, or affect the representation of the estate in violation of RPC 1.1 (competence) or RPC 1.3 (diligence); if the lawyer learns or concludes that he is likely to be a necessary witness under RPC 3.7; if there is evidence the AIP was not competent when his will was executed; or if other facts come to light indicating a conflict under RPC 1.6(a), 1.7(a), 1.8(b), or 1.9.

In practice

Under this opinion, and under the Washington rules as they stood at the time, a lawyer who represented a now-deceased client may take on the probate of that client's estate for the personal representative, where the representative is the spouse and sole heir, when the facts are limited and unremarkable. The opinion frames the analysis as conditional: it flags competence and diligence, the lawyer-as-witness rule, the deceased's testamentary capacity, and the confidentiality and conflict rules as points that could require withdrawal if the underlying facts develop, so the conclusion is tied to the facts presented rather than a blanket clearance.

Common questions

Q: Is it a conflict for a lawyer to probate a deceased former client's estate for the spouse who is the sole heir?

A: The opinion concludes that, on the limited facts presented, the Rules of Professional Conduct do not prohibit it.

Q: When might the lawyer have to withdraw?

A: The opinion lists several triggers: acquiring information that jeopardizes the representation (RPC 1.1, 1.3), becoming likely to be a necessary witness (RPC 3.7), evidence the deceased lacked competence when the will was executed, or other facts indicating a conflict under RPC 1.6(a), 1.7(a), 1.8(b), or 1.9.

Q: Does the prior representation of the deceased automatically disqualify the lawyer?

A: No. The opinion treats the prior representation as compatible with representing the estate's personal representative on these facts, while noting that information from the earlier matter could create a former-client or confidentiality problem requiring withdrawal.

Background and rules framework

The opinion applies a cluster of Washington Rules of Professional Conduct to a lawyer who moves from representing a client to representing the personal representative of that client's estate: RPC 1.1 and 1.3 (Model Rules 1.1, 1.3; competence and diligence), RPC 1.6 (Model Rule 1.6; confidentiality), RPC 1.7, 1.8, and 1.9 (Model Rules 1.7, 1.8, 1.9; concurrent-client, current-client transaction, and former-client conflicts), and RPC 3.7 (Model Rule 3.7; lawyer as necessary witness). It does not resolve any of these against specific facts; it identifies them as the points at which a problem could arise.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 / Washington RPC 1.1 and Model Rule 1.3 / Washington RPC 1.3 (competence; diligence)
• Model Rule 1.6 / Washington RPC 1.6(a) (confidentiality)
• Model Rule 1.7 / Washington RPC 1.7(a); Model Rule 1.8 / Washington RPC 1.8(b); Model Rule 1.9 / Washington RPC 1.9 (conflicts of interest)
• Model Rule 3.7 / Washington RPC 3.7 (lawyer as necessary witness)

See also

• WA Ethics Op. 1167: Lawyer With a Personal Claim Against an Estate It Represents
• WA Ethics Op. 1057: Former-Client and Lawyer-as-Witness Problems
• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for an Estate or Trust

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1595

Original opinion text

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

Advisory Opinion: 2155
Year Issued: 2007
RPC(s): RPCs 1.1, 1.3, 1.6, 1.7, 1.8, 1.9, & 3.7
Subject: A lawyer representing the personal representative in the probate of the estate of a former client

The Inquiring Lawyer represented an AIP (alleged incompetent person) in opposing an attempt by his daughter to have a guardianship established on his behalf. Before the guardianship hearing, the AIP died and now his surviving spouse, designated personal representation and sole heir to the estate, has asked the inquiring lawyer to probate the estate. The inquiring lawyer asks if it’s a conflict to represent the Personal Representative in the probate of the AIP’s estate.

Based on the limited facts presented, the Rules of Professional Conduct do not prohibit the lawyer of a deceased former client from representing the PR of the former client’s estate where the PR is also the former client’s spouse and sole heir of the estate. Should the lawyer have acquired information which would jeopardize, compromise, influence or affect representation of the estate in violation of RPC 1.1 or 1.3 or should the lawyer learn or conclude that he is likely to be a necessary witness (RPC 3.7), or if there is evidence that the AIP was not competent at the time his will was executed, or if such other facts come to light that might indicate conflict in violation of 1.6(a), 1.7(a), 1.8(b) or 1.9, the lawyer may well be obligated to withdraw.