Can a lawyer who helped draft a wife's will later defend her husband's estate in a suit by the children over how the husband used a power of appointment from that will?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had done several tax matters for a first wife and, at the request of the attorney who had long represented her family, had helped draft her will, obtaining information about her assets, meeting with her, revising the draft, and suggesting changes that were adopted. The will created a trust giving the husband a life benefit and a power of appointment over the corpus; if he did not exercise it, the corpus would pass to the children of the marriage. The lawyer was also regular counsel to the husband and later to his executor. After the wife died, the husband remarried and, shortly before his death, exercised the power in favor of his second wife. The children sued the executor and the second wife, contending their parents had agreed the power would not be exercised. The lawyer asked whether his earlier role in the wife's will barred him from defending the husband's estate.
The committee applied DR 5-105 (declining or continuing employment involving differing interests) together with the substantial-relationship test for former clients, which it had long used and which appeared in proposed Rule 1.9(a). The first wife was the lawyer's former client through both the tax work and his participation in drafting her will. Because the lawsuit turned on the husband's proper exercise of the power granted by that will, the committee found the lawyer's will-drafting role substantially related to the litigation. It reasoned that the children's allegations about the wife's intent, backed by some evidence, were enough to create the conflict, and that waiting for a finding on the wife's intent would come too late to protect her estate's interests.
The committee acknowledged the lawyer had not been the wife's primary attorney, but it held the substantial-relationship test does not require parsing the matter that finely; the test exists to identify a disabling conflict without delving into the content of confidences, citing Bays v. Theran. The lawyer's duties of confidentiality and loyalty to the wife and her estate therefore barred him from defending the husband's estate against a claim that he had breached duties to her by exercising the power her instrument created.
Currency note
This opinion was issued in 1997, 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: Did helping draft the wife's will bar the lawyer from defending the husband's estate?
A: The committee concluded it did. Because the suit turned on the husband's exercise of a power granted by that will, the lawyer's will-drafting work was substantially related, and his loyalty to the wife as a former client barred the defense.
Q: Did it matter that the lawyer was not the wife's primary attorney?
A: No. The committee held the substantial-relationship test does not require parsing the role that finely; it identifies a disabling conflict without examining the content of confidences, citing Bays v. Theran.
Q: Why not wait to see what the court found about the wife's intent?
A: The committee reasoned that if the finding later favored the children, it would be too late to protect the wife's estate from the lawyer appearing against her interests, so the allegations plus some supporting evidence were enough to create the conflict now.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 5-105 (differing interests) and the substantial-relationship test for former clients, corresponding to Model Rules 1.7 (concurrent conflicts) and 1.9 (duties to former clients). The committee noted the test appeared in proposed Massachusetts Rule of Professional Conduct 1.9(a), the current rules not yet being in effect.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.9 / proposed Mass. R. Prof. C. 1.9(a) (duties to former clients; substantial-relationship test)
- Model Rule 1.7 / DR 5-105 (differing interests; declining or continuing employment)
Cases:
- Bays v. Theran, 418 Mass. 685 (1994) (content of confidences need not be shown to find a disabling conflict)
See also
- MA Bar Ethics Op. 97-5: Suing former clients on a loan guarantee
- MA Bar Ethics Op. 99-5: Joint clients and a theft from the estate
Source
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