LEO: Attorney/Client Relationship - Conflict  LE Op. 1206


Attorney/Client Relationship - Conflict of Interest - Multiple

Representation: Attorney/Executor Representing Only Some of His

Former Client's Beneficiaries.


April 3, 1989


You have asked for guidance as to the proper course of action for an

attorney who is named and qualified as executor of his client's estate in

the following two situations.


The decedent/client owned a home, fully paid for, which she left to her

surviving son and three daughters to share equally and which is not a part

of the estate assets. Dissension has arisen between the heirs as to the

disposition of the house and one daughter has filed a partition suit to

force the sale of the jointly owned real estate. The other heirs (two

daughters and a son), have retained the attorney/executor to represent

their interests in the partition suit and the same attorney filed an

answer on their behalf. Recently, the surviving son has made an offer

directly to the other heirs to purchase their interest in the jointly

owned real estate. His sisters are amenable to selling the house to their

brother for the agreed upon price, subject to agreed upon conditions as to

closing costs and payment of bills. The surviving son has also requested

that the attorney/executor represent him in the real estate transaction,

which the two sisters did not oppose. You wish to know if a conflict of

interest would exist in the representation of the three heirs in the

partition suit and whether or not a conflict of interest would exist in

the representation of the surviving son in the real estate transaction by

the attorney/executor.


Although the roles of executor and attorney representing some but not all

of the beneficiaries might be in conflict as to the assets of the estate,

the facts as you have presented them indicate that the real estate

involved is not an asset of the estate. Thus, the Committee directs you to

 DR:5-105(C), which provides that a lawyer may represent multiple clients

if it is obvious that he can adequately represent the interests of each

and if each consents to the representation after full disclosure of the

possible effect on the exercise of his independent professional judgment

on behalf of each in the multiple representation. The Committee opines

that the continued representation of three of the beneficiaries may result

in a breach of your fiduciary obligation to the fourth beneficiary and as

such, the Committee believes that her informed consent should be obtained

as well. (See LE Op. 370)


The second situation involves whether the executor of the estate should

pay a department store bill and utility bills, which accounts are in the

name of the decedent's late husband, as an indebtedness of the estate,

when the executor has not received proper notification under oath from the

companies, and the surviving heirs are not amenable to having the estate

pay for that indebtedness. An executor would be required to comply with

the terms of the will or applicable law for the payment of certain debts

of the estate.


The question of which debts to be paid under which circumstances is a

legal one which does not require consideration of an attorney's

professional conduct and is, therefore, beyond the purview of the



Committee Opinion April 3, 1989