Legal Ethics Opinion No. 1387

Estate Planning/Administration--Conflict of Interest--Attorney As
Witness: Attorney/Co-Executor Representing the Estate While
Serving As Co-Trustee of the Residuary Trust  

You have indicated that the co-executor of an estate is a partner
in a law firm and is also one of several co-trustees of a trust
created by the residuary clause of the same will.  The testator
also provided in his will that the co-executor's law firm
represent the estate.

You have requested that the committee consider the propriety of
the firm's undertaking the representation as to matters of estate

The appropriate and controlling disciplinary rule applicable to
the circumstances you describe is DR 5-l0l(A) which precludes a
lawyer from accepting employment if the exercise of his
professional judgment on behalf of his client may be affected by
his own financial, business, property, or personal interests,
except with the consent of his client after full and adequate
disclosure under the circumstances.  

The committee has earlier opined that 

     an attorney who serves as fiduciary to a trust or
     estate and additionally engages his law firm as
     attorney for the same entity presents a personal
     conflict as described by DR 5-l0l(A).  In such a
     situation, the attorney's own financial, business, or
     personal interest may potentially affect the exercise
     of his professional judgment on behalf of the trust or
See LEO #l358.  Furthermore, in rendering LEO #l358, the
committee analogized the dual roles of fiduciary and lawyer
administering the estate to earlier conclusions reached wherein
LEO #l353 found no impropriety in a corporate Assistant General
Counsel referring his corporate client to an outside law firm
with which he was affiliated as "of counsel," provided that the
outside law firm maintain direct communication with individuals
within the corporation other than the Assistant General
Counsel/outside law firm "of counsel."  Thus, it is not per seimproper for an executor or trustee ("fiduciary/partner") to
engage his own law firm to represent matters of estate
administration.  Since the facts you present indicate that the
individual in question is both a co-trustee and co-executor, it
is the committee's opinion that the consent of the co-fiduciaries
must be obtained prior to the firm's taking on representation of
the estate.  In addition, the committee urges that the
co-fiduciaries, rather than the fiduciary/partner maintain the
necessary communication with the firm throughout the
administration of the estate.  See also LEOs #257, 370; N.H.
Ethics Op. l987-8/9 (Sept. 23, l988), ABA/BNA Lawyer's Man. on
Prof. Conduct 90l:570l.

Finally, the committee cautions that DR 5-l0l(B) and DR 5-l02(A)
preclude a lawyer from accepting or continuing employment if he
knows or it is obvious that he or a lawyer in his firm ought to
be called as a witness [in any contemplated or pending
litigation] except in very limited circumstances.  Therefore,
should it become necessary for the fiduciary/partner to testify
at either a probate hearing or at any ensuing litigation, it
would be necessary for the firm to withdraw from representation
unless such testimony would relate solely to an uncontested
matter or to a matter of formality and then only if there were no
reason to believe that substantial evidence would be offered in
opposition to the testimony.

Committee Opinion
November 30, 1990