Can a lawyer who prepared a client's power of attorney also represent the attorney-in-fact in a transaction affecting the client?

Plain-English summary

The inquiry concerned an attorney-in-fact who wanted the lawyer who prepared the power of attorney to represent the attorney-in-fact. The committee analyzed the question under RPC 1.7.

The committee concluded that the lawyer may not represent the agents if the agents' interests are adverse to the client and doing so would adversely affect the client, unless the client consents and makes an appropriate waiver under RPC 1.7(a)(2). It added that the lawyer also may not represent the agents if the lawyer would be materially limited by responsibilities to the client, unless the agents consent in writing after full disclosure as required by RPC 1.7(b). Assuming the client and agents have adverse interests, the committee concluded that if there is no waiver before the client becomes incompetent, the lawyer may not represent the agents; but if a valid waiver was obtained before the incompetence, the lawyer may do so as long as the lawyer reasonably believes the client's representation will not be adversely affected and the requirements of RPC 1.7(b) are met.

The committee observed that the transfer of the client's real property to her children may be adverse to her, and that there were not enough facts to determine the children's motives, the effect on the client's immediate needs, or whether the power of attorney explicitly or implicitly authorized the attorney-in-fact to waive the conflict or give consent (including consents under rules such as RPC 1.6). The committee stated it does not comment on the sufficiency of any particular prospective waiver document.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.6 and RPC 1.7 correspond to ABA Model Rules 1.6 (confidentiality) and 1.7 (conflict of interest: current clients); the consent and waiver provisions the committee cited have since been renumbered within Model Rule 1.7.

Common questions

Q: Can the lawyer who drafted a power of attorney represent the agent?

A: Not where the agents' interests are adverse to the client and the representation would adversely affect the client, unless the client made an appropriate waiver under RPC 1.7(a)(2).

Q: Does it matter when the waiver was obtained?

A: Yes. The committee concluded that without a waiver before the client became incompetent, the lawyer may not represent the agents; a valid waiver obtained before the incompetence could permit it if RPC 1.7(b) is satisfied.

Q: Did the committee judge the proposed transfer to the children?

A: It said the transfer of the client's real property to her children may be adverse to her, but that there were not enough facts to determine the children's motives or the effect on the client, and it declined to comment on any particular waiver document.

Background and rules framework

The opinion applied Washington RPC 1.7(a) and 1.7(b) (conflict of interest: directly adverse and materially-limited representations) and referenced RPC 1.6 (confidentiality), corresponding to ABA Model Rules 1.7 and 1.6. The committee made the analysis turn on whether the client and agents had adverse interests, whether a valid waiver predated the client's incompetence, and whether the power of attorney authorized the agent to waive the conflict or give consent.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(a)(2), 1.7(b)

See also

• WA Ethics Op. 1789: Nonprofit Lawyer Meeting Donors
• WA Ethics Op. 1814: Lawyer on a Hospital Board
• WA Ethics Op. 1807: LLC Counsel vs. a Minority Member

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1012

Original opinion text

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

Advisory Opinion: 1819
Year Issued: 1998
RPC(s): RPC 1.6; 1.7(a); 1.7(b)
Subject: Conflict of interest; lawyer who prepared power of attorney asked to represent attorney-in-fact

The Committee researched and reviewed your inquiry concerning an attorney-in-fact wanting lawyer who prepared power of attorney to represent attorney-in-fact and determined the following:

The attorney may not represent agents if the agents' interests are adverse to client and if doing so would adversely affect the client, unless the client consents and makes an appropriate waiver under RPC 1.7(a)(2). Further, the attorney may not represent the agents if the attorney will be materially limited by his responsibilities to client, unless the agents consent in writing after full disclosure as required by RPC 1.7(b).

Assuming client agents have adverse interests, and if there is no waiver prior to client becoming incompetent, attorney may not represent agents. If there is a valid waiver obtained prior to the incompetence, it is possible for attorney to do so as long as he reasonably believes the representation of the client will not be adversely affected and the requirements of RPC 1.7(b) are also met.

The transfer of the client's real property to her children may be adverse to her. There are not enough other facts to determine the motives of the children or what effect this would have on the client's immediate needs. Nor is there sufficient information to determine whether the power of attorney explicitly or implicitly includes authorization for the attorney-in-fact to waive the conflict or give consent to the representation (or for that matter other consents under the RPCs such as RPC 1.6). Finally, the Committee does not comment upon the sufficiency of any particular prospective waiver document.