Legal Ethics Opinion No. 1473

Estate Administration--Multiple Representation: Disagreement 
Between Co-Executors 

You have indicated that following the death of the testator, a
last will and testament was probated in the appropriate Circuit
Court.  All of the decedent's estate was divided among two trusts
of which his wife is the income beneficiary for her lifetime and,
following her death, the property in each of the trusts is to be
divided among the decedent's three children [X, Y, Z] who are
named as [co-]Executors and [co-]Trustees of each of the trusts.

You further indicate that the three children qualified as
Executors (but not Trustees) shortly after the death of the
testator and tension among the three Executors developed almost
immediately.  You advise that Executor X contacted Lawyer A of
law firm F for representation in connection with the estate and
further that legal counsel was also engaged by Executor Y and by
the income beneficiary [decedent's wife].  Shortly thereafter,
each of the Executors and the income beneficiary agreed that
Lawyer A would represent the interest of the estate. 
Subsequently, Executor X acknowledged that Lawyer A no longer
represented him as Executor and X retained separate counsel to
represent him.  You indicate that, by that time, each Executor
and the income beneficiary had separate counsel.  Shortly after
the parties agreed that Lawyer A of law firm F would represent
the estate, Lawyer A requested that Lawyer B of the same firm
assist him in the matter and Lawyer B essentially took over the
matter from Lawyer A.   

You advise that, during the course of the administration of the
estate, Lawyer B communicated to each of the three Executors,
their attorneys and the income beneficiary and her attorney, his
advice on what needed to be done on tax matters, marshalling
estate assets, characterizing receipts as income and principal,
preparation of accountings, and similar matters.  

The facts you provide indicate that, while there was agreement
among the Executors on some issues, there was disagreement on
others which usually reflected a division between two of the
Executors [Y and Z] agreeing with Lawyer B's advice and Executor
X disagreeing.  Although there was litigation on two questions
during the administration of the estate, you indicate that
substantially all of the issues pertaining to the administration
of the estate were resolved approximately eighteen months after
the death of the testator and Lawyer B advised each of the
Executors that it was then appropriate for the trusts to be
funded and for the three to qualify as Trustees.  

Owing to the dissension among the three, there was discussion as
to use of alternative Trustees, but the three Executors and
Trustees could not agree to an alternative course.  At that time,
Executor X indicated verbally that he did not intend to qualify
as Trustee, but neither he nor his counsel responded to a request
that he confirm his position in writing so that
Executors/Trustees Y and Z might qualify as Trustees.  Upon
notice that a court time had been set for those wishing to
qualify as Trustee to do so, Y and Z appeared and qualified, but
X did not appear.  You indicate that, subsequent to the
qualification of Y and Z, counsel for X advised that X wished to
qualify as well and commenced an action before the Circuit Court
to seek court approval for X to qualify as Trustee.  Lawyer B did
not represent Y and Z in that proceeding, but appeared as a
witness testifying as to the substance of his conversations with
X's counsel.  The Court subsequently allowed X to qualify and he
did so.

Finally, you advise that it is likely that the dissension among
X, Y and Z will continue and that, should adversity arise between
X on one hand and Y and Z on the other, it appears unlikely that
X will consent to Lawyer B's representation of Y and Z as
Trustees.  Lawyer B is not aware of any information imparted to
him in confidence by any of the Executors and he has tried to
advise all Executors of the positions taken by each and the
response thereto.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for Lawyer B to continue to represent
Executors Y and Z as Trustees in the event that they become
adverse to Executor/Trustee X and X refuses to consent to that
representation. 

The appropriate and controlling disciplinary rule relative to
your inquiry is DR 5-l05(D) which mandates that 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 consentsafter disclosure.  [emphasis added]   

The committee has previously opined that an attorney engaged to
represent an estate enjoys an attorney/client relationship with
the personal representative  since that individual "assumes the
legal status as the agent of the decedent and is the only
available conduit of information between the entity  and the
attorney".  LEO #l452.  In the facts you present, wherein three
individuals serve as co-Executors of an estate and an attorney
has represented the estate, the committee is of the opinion that
the attorney/client relationship on behalf of the estate exists
simultaneously with each of the co-Executors.  The committee is
of the further opinion that the fact that each Executor has
separate independent counsel does not alter the conclusion that
the client(s) is not the estate, but the three Executors.

As stated in DR 5-l05(D), the question of whether subsequent
representation of a client conflicts with the prior
representation of a former client turns on the questions of
whether the matters are "the same or substantially related" and
whether there is adversity between the current and former
clients.  In the facts you present, the committee is of the view
that the issues involved in the establishment and administration
of the trusts evolve from the same set of facts, i.e., from a
single document of the same decedent, as does the estate
administration.  Therefore, the committee is of the belief that
the matters are substantially related.  See LEO #ll39.  The
committee is of the opinion that the adverse interests among the
three Executors/Trustees requires Lawyer B to obtain consent of
all three in order to continue to represent two of the three
Executors/Trustees; and, in the absence of said consent, Lawyer B
may not continue such representation.  

The committee is of the further opinion that where the earlier
and present matters are substantially related, the attorney's
non-receipt of secret or confidential information is irrelevant.

Committee Opinion
September 1, 1992