Can one lawyer represent a client both as the administrator of an estate (with the will annexed) and individually as a pretermitted heir claiming a share of that estate?

Currency note

This opinion was issued in 1976, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 5-102(B) (representing conflicting interests) and ABA Code DR 5-105(A) and (B) and EC 5-15, 5-16, and 5-17, the predecessors to current California Rule 1.7 and Model Rule 1.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a lawyer may represent a client in seeking letters of administration with the will annexed of a decedent's estate and then represent the same client in seeking a decree (under Probate Code section 1080) determining that the client is a pretermitted heir. The committee concluded the representation is ethically proper.

It applied former Rule 5-102(B), which barred representing conflicting interests without the written consent of all parties, along with ABA EC 5-15, 5-16, 5-17 and DR 5-105(A) and (B). Because Probate Code section 90 gives a pretermitted heir the right to succeed as if the testator had died intestate, the heir's interests clearly conflict with those of the will's named beneficiaries; the lawyer for the pretermitted heir therefore could not also represent a will beneficiary in the proceeding without consent. The controlling question, the committee said, was whether representing the pretermitted heir in obtaining letters of administration with the will annexed was in substance tantamount to representing the beneficiaries.

Following Los Angeles County Bar opinions Nos. 144 (1943) and 237 (1956), the committee concluded it was not. An administrator with the will annexed, though owing duties to beneficiaries, heirs, and creditors, is in an heirship proceeding "in reality, a stakeholder," whose representative-capacity interests are not tantamount to the beneficiaries' interests. It also explained that asserting pretermitted-heir rights is not a will contest: the will is still admitted to probate and remains operative as to all property to which the pretermitted heir does not succeed. The committee added two cautions: per L.A. County opinion No. 193 (1952), representation would be improper if the lawyer had obtained confidential information from adverse parties usable to benefit the client individually; and the opinion is limited to heirship proceedings, since other controversies might make dual representation improper.

Common questions

Q: Is it a conflict for the same lawyer to handle the estate administration and the client's own pretermitted-heir claim?

A: The committee concluded it is not a disqualifying conflict. In an heirship proceeding the administrator with the will annexed acts as a stakeholder, so the representative-capacity role is not in substance the same as representing the will's beneficiaries.

Q: Isn't claiming pretermitted-heir rights the same as contesting the will?

A: No. The committee explained that a pretermitted heir is not a will contestant; the heir simply succeeds to an intestate share under Probate Code section 90, and the will remains admitted to probate and operative as to the rest of the estate.

Q: When would the dual representation become improper?

A: The committee cautioned it would be improper if the lawyer, acting for the personal representative, had obtained confidential information from adverse parties that could benefit the client individually in the heirship proceeding, and that the conclusion is limited to heirship proceedings.

Background and rules framework

The opinion interprets former California Rule 5-102(B) (no representation of conflicting interests without written consent), read together with ABA Code DR 5-105(A) and (B) and EC 5-15, 5-16, and 5-17 (multiple-client representation, including multiple beneficiaries of a decedent's estate). It applies the probate framework of Probate Code sections 90 (pretermitted heir's intestate share) and 1080 (heirship determination). The conflict standard is now embodied in California Rule 1.7 and Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Former California Rule 5-102(B)
• ABA Code of Professional Responsibility, DR 5-105(A) and (B); EC 5-15, 5-16, 5-17
• Current analogs: Model Rule 1.7 / California Rule 1.7

Statutes:

• California Probate Code sections 90 (pretermitted heir) and 1080 (determination of heirship)

Other opinions cited:

• L.A. County Bar Assn. Committee on Legal Ethics Opinions Nos. 72 (1934), 144 (1943), 193 (1952), and 237 (1956)
• New York County Lawyers Association Committee on Professional Ethics Opinion No. 35-1914

See also

• CA Ethics Op. 1975-35: Third-Party Defense Fee Conditioned on a Client's Silence
• CA Ethics Op. 1970-22: Conflicts in Joint Criminal Defense

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1976-41.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1976-41

ISSUE:

May an attorney ethically represent a client in seeking letters of administration with the will annexed of a decedent's estate and then represent the same client in seeking a decree determining that the client is a pretermitted heir?

DIGEST:

A lawyer representing a pretermitted heir of a decedent is not thereby disqualified from representing the same person in seeking letters of administration with the will annexed of the decedent's estate.

AUTHORITIES INTERPRETED:

Rule 5-102(B) of the Rules of Professional Conduct of the State Bar. American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(A) and (B).

DISCUSSION

The request for an opinion asks whether it is ethically proper for an attorney to represent a client in seeking letters of administration with the will annexed of a decedent's estate and then to represent the same client in seeking a decree (pursuant to Prob. Code, 1080) determining that the client is a pretermitted heir.

The Committee is of the opinion that such representation is ethically proper.

Rule 5-102(B) of the Rules of Professional Conduct proscribes representation of conflicting interests, except with the written consent of all parties concerned. American Bar Association Code of Professional Responsibility, Ethical Considerations 5-15 and 5-16 and Disciplinary Rules 5-105(A) and (B), promulgated in connection with American Bar Association Code of Professional Responsibility, canon 5, are of similar import. American Bar Association Code of Professional Responsibility, Ethical Consideration 5-17, lists a number of typically recurring situations involving potentially differing interests, and indicates that whether a lawyer can fairly and adequately protect the interests of multiple clients in such situations depends upon an analysis of each case; among the situations listed in Ethical Consideration 5-17 is representation of multiple beneficiaries of the estate of a decedent.

Section 90 of the Probate Code gives a pretermitted heir the right to succeed to the same share in the estate of the testator as if he had died intestate. Accordingly, for purposes of the determination of heirship proceeding, (pursuant to Prob. Code, 1080) the interests of a pretermitted heir clearly conflict with those of the beneficiaries named in the will.

The attorney for the pretermitted heir therefore obviously may not ethically represent a beneficiary named in the will in such a proceeding, absent the required prior informed written consent. However, the controlling question is whether representing the pretermitted heir in obtaining letters of administration with the will annexed is, in substance, tantamount to representing the beneficiaries of the will, thereby giving rise to a representation of conflicting interests.

A similar question has been considered by the Los Angeles County Bar Association Committee on Legal Ethics on several occasions. Both in Los Angeles County Bar Association Committee on Legal Ethics opinion No. 144 (1943) and opinion No. 237 (1956) that committee concluded that an attorney may properly represent a person as an administratrix and also in her individual capacity as an heir in the heirship proceeding. The basis of both of those opinions was that the interest of an administratrix and the interest of an heir are not per se conflicting or adverse. Los Angeles County Bar Association Committee on Legal Ethics opinion No. 144, supra, pointed out that the personal representative of an estate as such has no interest in a proceeding to determine the succession to the estate.

We concur with the conclusions of Los Angeles County Bar Association Committee on Legal Ethics opinions Nos. 144 and 237, supra, as applied to the facts presented by the request before this Committee. In our opinion, while an administrator with the will annexed, in his representative capacity, obviously owes certain duties to various classes of persons (e.g., beneficiaries, heirs and creditors), his interests in such representative capacity are not, in substance, tantamount to the interests of the beneficiaries under the will; in an heirship proceeding, the personal representative is, in reality, a stakeholder. Accordingly, representation of an administrator with the will annexed, in his representative capacity, is not in substance tantamount to representation of the beneficiaries under the will.

At first blush, it might appear that the assertion of rights as a pretermitted heir amounts to a challenge of the will which (by virtue of the fact that the personal representative has been appointed "with the will annexed") the personal representative is charged with administering. Such an analysis misconstrues the nature of the rights of a pretermitted heir. A pretermitted heir is not a contestant of the will. Such heir simply "succeeds to the same share in the estate of the testator as if he had died intestate." (Prob. Code, 90.) The will is still admitted to probate, and it is still fully operative with respect to all of the estate to which the pretermitted heir does not succeed. Accordingly, the assertion of rights as a pretermitted heir is not inconsistent with that portion of the order appointing the administrator with the will annexed which admits the will to probate.

Two cautionary reminders are appropriate at this point:

1. As Los Angeles County Bar Association Committee on Legal Ethics, opinion No. 193 (1952) pointed out, where the attorney, representing a personal representative, acting as and by virtue of his position as attorney for such personal representative, has obtained confidential information from the adverse parties to the heirship proceeding which potentially could be of benefit in the heirship proceeding to the personal representative in his individual capacity, it would appear to be improper for the attorney to represent the personal representative in his individual capacity in the heirship proceeding.

2. Also, it should be noted that the within opinion is limited to representation of an administrator in his individual capacity in an heirship proceeding. There are other sorts of proceedings and controversies in which representation of the personal representative, both in his representative capacity and in his individual capacity, would seem to be improper. (See, e.g., L.A. Co. Bar Assn. Committee on Legal Ethics, opn. No. 72 (1934).) The controlling aspect of an heirship proceeding giving rise to the conclusions expressed in the within opinion is that the assertion of rights as a pretermitted heir in an heirship proceeding is in no way inconsistent with the appointment, functions and duties of the personal representative in his representative capacity. (Cf. opinion No. 35-1914 of the Committee on Prof. Ethics of the New York County Lawyers Association, to the effect that an attorney cannot ethically represent a legatee in having a will admitted to probate and then assist the same legatee in contesting the will.)

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.