Can a lawyer who represented one heir in a will contest later represent the administrator of the estate's residue?

Plain-English summary

The inquiry concerned a lawyer who had been counsel of record for one of sixteen heirs in a will contest. After the will (covering a minor part of the estate) was admitted to probate, the question was whether he could accept employment as attorney for a disinterested administrator appointed to administer the residue estate, given that questions might arise pitting his former client against the other heirs. A second group of questions asked whether, having taken that employment and holding an undivided interest in all property covered by the will as his contest fee, he could advise the administrator on, and seek a court order for, payment of a disputed bequest.

The committee was unanimous that the answer to each question was "No" under Canon 6 (adverse influences and conflicting interests). The lawyer should not accept the administrator employment in the first place, and if the conflict situation arose after employment, he should immediately withdraw from the case. The vote was 10-0.

Currency note

This opinion was issued in 1951, 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; conflicts with current and former clients and the duty to withdraw are now addressed by ABA Model Rules 1.7, 1.9, and 1.16. Treat this page as historical context, not current guidance.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 lawyer take the administrator's case if he had represented just one of the heirs?

A: No. The committee held (10-0) that he should not accept employment by the residue administrator, because the administrator might have to decide questions pitting his former client against the other heirs.

Q: What if the conflict only emerged after he was already employed?

A: The committee held that if the conflict situation arose after employment, the lawyer should immediately withdraw from the case.

Q: Did his fee arrangement matter?

A: Yes. The lawyer had taken an undivided interest in all property covered by the will as his contest fee, giving him a personal stake; the committee answered "No" to each question about advising or representing the administrator on the disputed bequest.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), applied to successive representation of an heir and then an estate administrator. The modern analogs are ABA Model Rule 1.7 (current-client conflicts), Model Rule 1.9 (duties to former clients), and Model Rule 1.16 (declining or terminating representation, including mandatory withdrawal).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (current-client conflicts), as the modern analog
• MR 1.9 (duties to former clients), as the modern analog
• MR 1.16 (declining or terminating representation), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

See also

• TX Ethics Op. 47: Conflicts of Interest in a Will-Interpretation Suit
• TX Ethics Op. 66: Estate's Lawyer Filing a Claim Against the Estate
• TX Ethics Op. 71: Will Drafter as Executor and Attorney

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-36/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_36.pdf

Original opinion text

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

QUESTION PRESENTED

Where any attorney has been counsel of record in a suit contesting a will, representing one of sixteen heirs, and such will, covering a minor part of the estate, has been admitted to probate, would it be proper for him to accept employment as attorney for a disinterested administrator who has been appointed to administer the residue estate when it appears that there may be questions arising for decision by the administrator which will involve a conflict of interest between the one heir represented by him and the remaining heirs?
In the event that such employment is or has been accepted and a question arises concerning the interpretation of the will involving a controversial question as to whether or not assets of the residue estate not included under the will should be sold to pay a bequest that may be either of all money on deposit in a specific bank account or of a specified sum of money, and the attorney who represented the heir in the will contest received as his compensation for such representation an undivided interest in all property covered by such will, would it be proper for such an attorney to:(a) Advise the administrator concerning payment of such bequest?
(b) Advise the administrator to go ahead and pay the minimum amount which would be, in any event, due under such bequest?
(c) Represent the administrator in an application requesting an order of the probate court to pay the minimum amount?

18 Baylor L. Rev. 211 (1966)

CONFLICTING INTERESTS - EMPLOYMENT - WILLS
An attorney who has represented one of sixteen heirs in a will contest, such will, covering a minor part of the estate, having been admitted to probate, should not accept employment by the administrator of the residue estate when the administrator may have to decide questions involving a conflict of interests between the one heir and the remaining heirs. If the employment is accepted and a question arises concerning the interpretation of the will as to whether or not the assets of the residue estate should be sold to pay a bequest and the attorney in the will contest had received as his fee, an undivided interest in all property covered by the will, the attorney should withdraw from the case.

Canon 6.

It is the unanimous opinion of the committee that the answer to each of the above questions should be "No" under Canon 6 which deals with the subject of Adverse Influences and Conflicting Interests. As to the first question, the attorney should not accept employment, and as to the second group of questions, if the situation outlined should arise after employment, such attorney should immediately withdraw from the case. (10-0)

Tex. Comm. On Professional Ethics, Op. 36 (1951)