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Ezel / Ethics Opinions / OSB
OSB August 2005

Can the lawyer for a resigned estate personal representative also represent the successor, including against the first one's fee claim?

Short answer: The opinion concludes the lawyer may represent the successor personal representative absent a conflict and may keep representing the original one, but may not represent the successor in opposing the original representative's fee claim without the original's written informed consent, because that matter is substantially related.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer represents the first personal representative of an estate. After the first personal representative resigns, a second personal representative is appointed. The opinion asks whether the lawyer may represent the second personal representative, whether the lawyer may instead represent the first in pursuing a claim for fees and expenses against the estate, and whether, if the lawyer represents the second and no longer the first, the lawyer may represent the second in opposing that fee claim.

The opinion starts from the Oregon rule that a lawyer for a personal representative represents the personal representative, not the estate or its beneficiaries (ORS 113.135 and cited cases). The personal representative owes fiduciary duties to the estate and beneficiaries, and the lawyer helps the representative discharge those duties and advises about conflicts, but the lawyer remains the representative's lawyer. It follows that the lawyer may continue to represent the first personal representative after that person leaves the position (question 2, yes), and, absent a conflict, may represent the second personal representative even though the lawyer also represented the first (question 1, yes, qualified).

On the third question, the opinion applies Oregon RPC 1.9, which bars a lawyer who formerly represented a client from representing another person in the same or a substantially related matter where interests are materially adverse, absent informed consent confirmed in writing. The opinion concludes that representing the second personal representative against the first in the first's fee-and-expense claim would be substantially related to the prior representation, a matter-specific former-client conflict (if not also information-specific). So the lawyer could not take that adverse representation without the first personal representative's informed consent, confirmed in writing (question 3, no, qualified).

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, the lawyer's client is the individual personal representative, so representing a successor is generally permissible, but the former-client rule controls the adverse fee dispute: because opposing the original representative's fee claim is substantially related to the lawyer's prior work for that person, RPC 1.9 requires the original representative's written informed consent. Verify the current text of Oregon RPC 1.9 and the probate statutes before relying on any specific point.

Common questions

Q: Can I represent an estate's new personal representative if I represented the one who resigned?

A: Yes, qualified. The opinion concludes the lawyer may represent the successor absent a conflict, because the lawyer's client was the individual representative, not the estate.

Q: Can I keep representing the original representative after they step down?

A: Yes. The opinion concludes the lawyer may continue to represent the first personal representative, including in pursuing a fee-and-expense claim against the estate.

Q: Can I represent the successor in fighting the prior representative's fee claim?

A: Not without consent. The opinion concludes that dispute is substantially related to the prior representation under RPC 1.9, so the lawyer needs the original representative's informed consent, confirmed in writing.

Background and rules framework

The opinion interprets Oregon RPC 1.9(a) and (c) (duties to former clients), with RPC 1.0(g) (informed consent), corresponding to Model Rule 1.9. It rests on Oregon law that the lawyer for a personal representative represents that representative individually (ORS 113.135; ORS 114.305(18)), not the estate or beneficiaries.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.9(a), (c) / Model Rule 1.9 (duties to former clients)
  • Oregon RPC 1.0(g) / Model Rule 1.0 (informed consent)

Statutes:

  • ORS 113.135 (employment of attorney by personal representative)
  • ORS 114.305(18) (personal representative's power to employ attorneys)

Cases:

  • In re Phelps, 306 Or 508, 760 P2d 1331 (1988)
  • In re Howard, 304 Or 193, 743 P2d 719 (1987)
  • Roberts v. Fearey, 162 Or App 546, 986 P2d 690 (1999)

See also

Source

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