Can a lawyer named independent executor also represent the devisees in suing a tenant who is a stranger to the will over the estate's leases?

Plain-English summary

An aged man, dying single, left his estate to his surviving brothers and sisters and in his will appointed his attorney independent executor. The inquiry asked whether that attorney could, at all the devisees' request, represent them in a meritorious suit against a tenant who was a stranger to the will, (a) for a flagrant violation of a five-year lease recognized as valid at the decedent's death, and (b) to cancel a much longer-term lease prepared by the tenant's attorney and executed shortly before the decedent's death, when he allegedly lacked physical and mental capacity.

All members agreed that on the facts as presented there is no conflict of interest precluding the attorney, under Canon 6 or any other canon, from suing for violation of the recognized lease, and that the same is true of the suit to cancel the other lease (8-0). Four members added a qualification: that would not hold if the decedent had asked the attorney to check the later lease before execution or had advised the tenant about it, in which case Canon 6 would preclude the representation as adverse to a conflicting interest, or if the attorney would be under a duty to testify, which would implicate Canon 16.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Could the executor-attorney represent the devisees against the tenant?

A: Yes, on these facts. The Committee found no conflict under Canon 6 barring suit for the lease violation or to cancel the later lease (8-0).

Q: What facts would change the result?

A: Four members noted a conflict would arise if the decedent had asked the attorney to check the later lease before execution or had advised the tenant about it, or if the attorney would be required to testify (raising Canon 16).

Q: Did the tenant's status as a stranger to the will matter?

A: Yes. The tenant was a stranger to the will, so representing the devisees against him did not put the attorney against an interest he owed a duty to under the will.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) and Canon 16 (a lawyer appearing as a witness). The modern analogs are ABA Model Rule 1.7 (conflict of interest, current clients) and Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients), as the modern analog
• MR 3.7 (lawyer as witness), as the modern analog to Canon 16
• Texas Canon 6 (conflicting interests)
• Texas Canon 16 (lawyer as witness)

See also

• TX Ethics Op. 158: Suing to Oust an Executor
• TX Ethics Op. 182: Lawyer as Executor and Estate Fees
• TX Ethics Op. 157: A Lawyer Who Must Testify at Trial

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-147/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_147.pdf

Original opinion text

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

QUESTION PRESENTED

Where an aged man, dying single and intestate, left his estate to his surviving brothers and sisters and in his will appointed his attorney independent executor, may such attorney, at the request of all of said devisees, ethically represent them in a meritorious suit against a tenant who is a stranger to the will (a) for a flagrant violation of a five year lease recognized as valid at the time of decedent's death, or (b) for cancellation of a much longer term lease prepared by tenant's attorney and executed shortly before decedent's death when he allegedly lacked physical and mental capacity?

18 Baylor L. Rev. 257 (1966)

ADVERSE INFLUENCE AND CONFLICTING INTERESTS - WILLS
An attorney, appointed as independent executor under a decedent's will, may properly represent all the devisees in a suit against a tenant of the estate, who is a stranger to the will for the violation of one lease and the cancellation of another.

Canon 6.

All members agree that under the facts as understood to be presented there would be no conflict of interest which would preclude said attorney, either under Texas Canon 6 or any other Canon, from instituting suit for a violation of the recognized lease, and also agree that this would likewise be the situation with respect to suit to cancel the other lease, except that four members point out this would not be the case if deceased had asked his said attorney to check such latter lease before execution or had advised the tenant with respect to such latter lease (in either of which events said attorney would be precluded from accepting representation by Texas Canon 6 against representing conflicting interests), or if said attorney would be under a duty to testify (which would result in violation of Texas Canon 16). (8-0)

Tex. Comm. On Professional Ethics, Op. 147 (1957)