Does a lawyer who drafted a will have a conflict in representing one heir against another in a dispute over the estate?

Plain-English summary

The inquiring lawyer had drafted the decedent's will and represented him in other matters. The will named a brother as personal representative and heir, along with a woman, and a dispute arose over estate property. The two heirs retained separate counsel, one being the inquiring lawyer; opposing counsel argued the inquirer had at worst a potential conflict representing heirs against each other and at best was a witness on the will's validity. The inquirer had never represented the personal representative/heir, recalled no confidential communications with the decedent around the will's execution, and knew of no reason the will's validity would be challenged. The committee answered on the assumption that the decedent's competency, the will's validity, and the existence of confidential communications were not in issue.

The committee concluded that the inquiring lawyer does not necessarily have a conflict of interest requiring withdrawal as the attorney for a beneficiary named in the will he drafted. It explained that RPC 3.7 prohibits a lawyer from acting as an advocate at trial where the lawyer is to be a witness, but that litigation had not been commenced. The committee said that if a lawsuit were filed raising issues of the will's validity, the testator's competency, attorney-client confidentiality, or the testator's intent, the inquirer should then reconsider RPC 3.7, and should also consider RPC 1.7 and 1.9 in determining whether he has a conflict.

In practice

Under this opinion, and under the Washington conflict rules as they stood in 2005, drafting a will does not by itself disqualify the drafter from later representing one beneficiary against another in an estate dispute, at least where the will's validity, the testator's competency, and confidential communications are not at issue. The opinion makes the analysis contingent: because RPC 3.7 bars a lawyer from being an advocate at trial when the lawyer is also a witness, the opinion holds that if litigation is filed and raises the will's validity, competency, confidentiality, or the testator's intent, the lawyer must reconsider RPC 3.7, and must also consider the conflict rules RPC 1.7 and 1.9.

Common questions

Q: Is a lawyer who drafted a will automatically barred from representing one heir against another?

A: No. The committee concluded the will drafter does not necessarily have a conflict requiring withdrawal where the will's validity, the testator's competency, and confidential communications are not at issue.

Q: When would RPC 3.7 come into play?

A: If litigation is filed. The committee said RPC 3.7 prohibits a lawyer from acting as an advocate at trial where the lawyer is to be a witness, so if a lawsuit raises the will's validity, the testator's competency, confidentiality, or intent, the lawyer should reconsider RPC 3.7.

Q: What other rules did the committee flag?

A: RPC 1.7 and 1.9. The committee said the inquirer should also consider those conflict rules in determining whether he has a conflict, and that if the assumptions about validity, competency, and confidences proved incorrect, RPC 1.7 and 1.9 must be considered.

Background and rules framework

The opinion applied RPC 3.7 (Model Rule 3.7, lawyer as witness), RPC 1.7 (Model Rule 1.7, concurrent conflicts), and RPC 1.9 (Model Rule 1.9, duties to former clients) as those Washington rules stood in 2005. It framed the will drafter's situation as contingent on whether litigation would put the will's validity, the testator's competency, or confidential communications in issue, which would trigger the lawyer-as-witness and conflict analyses.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / Washington RPC 3.7 (lawyer as witness)
• Model Rule 1.7 / Washington RPC 1.7 (concurrent conflicts)
• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients)

See also

• WSBA Ethics Op. 930: In-House Counsel as a Witness
• ABA Formal Op. 497: 'Materially Adverse' Former-Client Conflicts
• NY State Bar Op. 746: Lawyer as Attorney-in-Fact and Fiduciary Roles

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1546

Original opinion text

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

Advisory Opinion: 2109
Year Issued: 2005
RPC(s): RPC 1.7, 1.9, 3.7
Subject: Attorney who drafted will representing one heir against another

The inquirer asks whether an attorney who drafted decedent’s will has a conflict of interest in representing one heir against the other heir who is also the personal representative (PR), where the validity of the will, the competency of the testator, and confidential communications with decedent are not issues.

The inquiring attorney drafted decedent’s will and represented him in other matters. The will names a brother as PR as well as an heir, along with a woman. A dispute has arisen over estate property. The two heirs have separate counsel, one of whom is the inquiring lawyer. The other attorney contends the inquiring lawyer has “at worst, a potential conflict representing heirs against each other; at best, you are a witness regarding the validity of the will.” The inquirer has never represented the personal representative/heir, recalls no confidential communications with decedent surrounding the execution of the Last Will and Testament, and knows of no reason the will’s validity would be challenged. For purposes of this opinion, we assume there is no issue regarding the decedent’s competency, the validity of the will, or the existence of confidential communications. Should these assumptions prove incorrect, RPCs 1.7 and 1.9 must be considered.

The inquiring lawyer does not necessarily have a conflict of interest requiring him to withdraw as the attorney for a beneficiary named in the will he drafted. RPC 3.7 prohibits a lawyer from acting as an advocate at trial where the lawyer is to be a witness. Litigation has not been commenced. Should a lawsuit be filed raising issues of the will’s validity, the testator’s competency, attorney-client confidentiality, or the testator’s intent, the inquirer should then reconsider RPC 3.7. The inquirer should also consider RPCs 1.7 and 1.9 in determining whether he has a conflict.