Ethics Opinions

Opinion No. 97-3

Summary:The inquiring lawyer, who had represented a husband and would later represent his estate, had participated with the wife's attorney in preparing her will, which granted a power of attorney to the husband. The inquiring lawyer had also previously represented the wife. When the wife died, the husband remarried and revised his will to exercise the power of attorney in favor of his second wife. The inquiring lawyer should not represent the husband's estate in a lawsuit brought by the children of his first marriage, who would have received the corpus had he not revised his will to exercise the power of appointment.

Facts: A Lawyer (L) asks whether he may defend the estate of a husband in a suit brought by the children of the husband's first marriage against the husband's estate and his second wife. During the first marriage, the lawyer had been asked by another attorney (A), who had long represented the first wife's parents, the first wife, and her siblings, to assist in drafting a will that he had prepared for the first wife. L had previously handled several tax matters for the first wife. L was then regular counsel to the husband and would later regularly represent his executor. L obtained information about the wife's assets from A, met with the wife and A, revised a draft of her will prepared by A, and made several suggestions that were adopted in her final estate plan. Her will established a trust with life benefits to the husband, who was given a power of appointment over the corpus of the trust. If the power was not exercised, the corpus would go to the children of the marriage.
The first wife died, and the husband remarried. Two years later, shortly before his death, he revised his will to exercise the power of appointment granted by his first wife in favor of his second wife. After his death, the children of the first marriage sued their father's executor and the second wife, contending that their mother had intended the corpus to go to them and that their father had agreed with their mother not to exercise the power of appointment. In litigation proceedings to date, the children have brought forth some evidence supporting their contention, but other evidence has indicated that the first wife intended that her husband should be free to exercise the power according to his responsibilities at the time.
L asks whether he is barred by his having participated with the first wife's attorney in preparing her will from representing the husband's estate in the action brought, not by the first wife or her estate, but by children of the marriage.
Discussion: Disciplinary Rule 5-105 provides:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105 (C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105 (C).
(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
The Disciplinary Rules also define differing interests as including "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest."
The first wife was L's former client by reason of the tax work he did for her and his participation in the drafting of her will. Since the lawsuit involves the husband's proper exercise of the power granted by the will, L's participation with A in drafting the will is substantially related to the subject matter of the lawsuit. If the first wife's estate were the plaintiff in the lawsuit, this substantial relationship and L's duty of loyalty to the first wife would bar L from defending the husband's estate. If the first wife had extracted an agreement from her husband not to exercise the power of appointment, her interest certainly differed from his, as expressed by him in his final will. Although the Supreme Judicial Court has never decided whether to apply the substantial relationship test in former representation matters, our committee has long applied the test, and it is included in S 1.9(a) of the proposed Massachusetts Rules of Professional Conduct.
A finding with respect to the wife's actual intent probably will not be made until the case is decided. If that finding should be favorable to the plaintiffs, it would then be too late to protect her estate from having L appear against her and its interests. In these circumstances, we believe that the plaintiffs' allegations as to the wife's intent backed by at least some evidence are sufficient to create the conflict.
Thus, it seems to us that in the current context L's obligations of confidentiality and loyalty to the wife and her estate require that L not represent the husband's estate in a litigation claiming that he breached duties to her or her estate in exercising a power granted by the very instrument on which L had advised her. We appreciate that L was not her primary attorney. Out understanding of the substantial relationship test, however, is that it does not require parsing things so nicely. The substantial relationship test is designed to determine whether a disabling conflict exists without delving into details of confidential matters. See Bays v. Theran, 418 Mass. 685, 688-89 and 691-92 (1994), which holds that the specific content of confidential information communicated to a lawyer need not be ascertained before concluding that a disabling conflict exists.


Permission to publish granted by the Board of Delegates on February 6, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.
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