Can town counsel who represents a man as estate executor advise the selectmen on revoking that man's liquor license for unpaid taxes?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
An attorney represented Y as executor of his late mother's estate, whose only remaining asset, the residence, Y would receive under the will. The attorney was also town counsel in the town where Y later obtained a liquor license (a matter in which the attorney did not represent Y and which he had disclosed to the selectmen). The board of selectmen was about to hold hearings on revoking the licenses of several licensees, including Y, for unpaid taxes, and the attorney asked what limits applied to advising the board, particularly on the licensees other than Y.
The committee first addressed whether representing an individual as executor is representing the individual for conflict purposes. It recognized that an executor can be seen as a distinct legal role, but concluded that, where the executor is an individual who is the principal beneficiary and is acting essentially for himself aside from paying the estate's debts, the lawyer should treat Y the individual as a client under DR 5-105. It then held that if the advice the attorney gave the board about the other licensees was directly relevant to Y's situation, it fell within the DR 5-105(A) prohibition; only advice on issues that would not arise in Y's hearing would be free of the problem. Because all the hearings concerned licensees with unpaid taxes, and Y was in that category, the committee found it hard to see how Y would not be affected, including where advice on some licensees set a pattern or let the board proceed against others on its own.
The committee summarized two conclusions. First, the attorney could not represent the board in its dealings with Y's license even if both Y and the board consented after full disclosure, because adequate representation of each was not obvious. Second, the attorney could not represent the board on Y's license even by closing out the estate first, because, under the Jelco rule adopted in Opinion 84-4, a conflict is judged when it arises and cannot be cured by finishing one client's work, the license matter having arisen while the estate matter was still active.
Currency note
This opinion was issued in 1992, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.
Common questions
Q: Is representing someone as executor the same as representing him personally?
A: The committee said that where the executor is an individual who is the principal beneficiary and is acting essentially for himself, the lawyer should treat the person as an individual client for conflict purposes under DR 5-105.
Q: Could the lawyer advise the board about the other licensees?
A: Only on issues that would not arise in the client's own hearing. Because all the hearings concerned unpaid taxes and the client was in that group, the committee found advice on the others was likely to bear directly on him.
Q: Would the clients' consent fix the problem?
A: No. The committee said the attorney could not take the adverse role even with both clients' consent after full disclosure, because it was not obvious he could adequately represent each.
Background and rules framework
The opinion applied DR 5-105 (representing differing interests, absent consent and obvious adequacy), corresponding to Model Rule 1.7, in a setting involving a government client (the board of selectmen), implicating Model Rule 1.13, and an individual fiduciary client. It relied on McCourt and the Jelco rule.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / DR 5-105 (concurrent conflicts; differing interests)
- Model Rule 1.13 (government entity as organizational client)
Cases:
- McCourt Co., Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982) (concurrent adverse representation)
- Unified Sewerage Authority v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981) (conflict judged when it arises)
Other opinions cited:
- MBA Opinion 84-4 (adopting the Jelco rule)
See also
- MA Bar Ethics Op. 92-3: Dropping one client to take a conflicting representation
- MA Bar Ethics Op. 94-2: Town counsel suing an agency she also represents
Source
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