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 co-administrator. 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.
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 LEO #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."
LEO #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. LEO #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.
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 court-awarded 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
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