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.
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