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.
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