SBAND ETHICS COMMITTEE
SBAND ETHICS COMMITTEE
OPINION NO. 25-03 THIS OPINION IS ADVISORY ONLY
FACTS PRESENTED An attorney represents the daughter of a decedent both in her capacity as personal representative of decedent’ s estate and as heir of the estate in an informal probate. Decedent’ s other heir is a son who is the brother of the daughter. The daughter was also the attorney-infact for the decedent prior to his death. There is no allegation that the decedent was incompetent.
The son has alleged a conflict of interest for the daughter’ s attorney to represent her as both heir and personal representative. The son apparently disputed the pay-on-death distributions and the father’ s will but had not filed formal claims against the estate.
The daughter and son agreed to mediate. The mediator raised the issue of a conflict of interest for the daughter’ s attorney for the representation of her personally and as personal representative. The daughter’ s attorney suspended the mediation by private message to the mediator with the reason that the attorney was going to advise the daughter to seek separate counsel as an individual. The following day, the mediator shared the message with all parties without consent from daughter’ s attorney. Although not specifically stated, it is assumed the mediator was a licensed attorney.
QUESTIONS PRESENTED
1. Is representing a personal representative who is also a beneficiary of the estate an inherent conflict of interest for an attorney? 2. Is there an ethical obligation to obtain separate counsel for the personal representative’ s personal interest in the estate?
3. Would settling potential or actual claims against the personal representative individually( for conduct relating to her actions as the attorney-in-fact through a power of attorney prior to father’ s death) breach any ethical obligations?
4. Was the mediator’ s accusation about PR’ s attorney in front of the client inherently coercive? If it was coercive, did it violate the applicable standard of conduct?
5. Did the mediator violate her ethical responsibilities by sharing the message described above to brother’ s attorney without permission?
APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT The questions relate to North Dakota Rule of Professional Conduct 1.7 on conflict of interest and N. D. R. Prof. C. 2.3 on a lawyer serving as a third-party neutral.
DISCUSSION The applicable provisions of Rule 1.7 are as follows:
( c) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer’ s responsibilities to another client or to a third person, or by the lawyer’ s own interests, unless:
( 1) the lawyer reasonably believes the representation will not be adversely affected; and
( 2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Comment 4 to this provides the framework for determining how the lawyer should proceed:
[ 4 ] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a material limitation on the representation of the client exists; 3) decide whether the representation may be undertaken despite the material limitation, i. e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph( c) and obtain their consent. The clients affected under paragraph( c) include any clients whose representations might be adversely affected. The critical questions are the likelihood that a material limitation will eventuate and, if it does, the likelihood the conflict will interfere with the lawyer’ s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
N. D. R. Prof. C. 1.7 comment 4.
Comment 8 addresses the implications to be considered when representing multiple parties in litigation.
[ 8 ] Paragraph( a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph( c). An impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as in civil cases. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the risk of adverse effect is minimal and the requirements of paragraph( c) are met.
N. D. R. Prof. C. 1.7 comment 8.
The Uniform Probate Code provides statutory guidance on inherent conflicts of interest for the personal representative of the estate. Under N. D. C. C. § 30.1-17-11, a person interested in an estate may petition for removal of a personal representative for cause, which exists when removal would be in the best interest of the estate, or the personal representative has mismanaged the estate or failed to perform a duty pertaining to the office. Section 30.1-18-13,
36 THE GAVEL