Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney ethically represent a client in seeking letters of administration with the will annexed of a decedent's estate and then represent the same client in seeking a decree determining that the client is a pretermitted heir?
A lawyer representing a pretermitted heir of a decedent is not thereby disqualified from representing the same person in seeking letters of administration with the will annexed of the decedent's estate.
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(A) and (B).
The request for an opinion asks whether it is ethically proper for an attorney to represent a client in seeking letters of administration with the will annexed of a decedent's estate and then to represent the same client in seeking a decree (pursuant to Prob. Code, 1080) determining that the client is a pretermitted heir.
The Committee is of the opinion that such representation is ethically proper.
Rule 5-102(B) of the Rules of Professional Conduct proscribes representation of conflicting interests, except with the written consent of all parties concerned. American Bar Association Code of Professional Responsibility, Ethical Considerations 5-15 and 5-16 and Disciplinary Rules 5-105(A) and (B), promulgated in connection with American Bar Association Code of Professional Responsibility, canon 5, are of similar import. American Bar Association Code of Professional Responsibility, Ethical Consideration 5-17, lists a number of typically recurring situations involving potentially differing interests, and indicates that whether a lawyer can fairly and adequately protect the interests of multiple clients in such situations depends upon an analysis of each case; among the situations listed in Ethical Consideration 5-17 is representation of multiple beneficiaries of the estate of a decedent.
Section 90 of the Probate Code gives a pretermitted heir the right to succeed to the same share in the estate of the testator as if he had died intestate. Accordingly, for purposes of the determination of heirship proceeding, (pursuant to Prob. Code, 1080) the interests of a pretermitted heir clearly conflict with those of the beneficiaries named in the will.
The attorney for the pretermitted heir therefore obviously may not ethically represent a beneficiary named in the will in such a proceeding, absent the required prior informed written consent. However, the controlling question is whether representing the pretermitted heir in obtaining letters of administration with the will annexed is, in substance, tantamount to representing the beneficiaries of the will, thereby giving rise to a representation of conflicting interests.
A similar question has been considered by the Los Angeles County Bar Association Committee on Legal Ethics on several occasions. Both in Los Angeles County Bar Association Committee on Legal Ethics opinion No. 144 (1943) and opinion No. 237 (1956) that committee concluded that an attorney may properly represent a person as an administratrix and also in her individual capacity as an heir in the heirship proceeding. The basis of both of those opinions was that the interest of an administratrix and the interest of an heir are not per se conflicting or adverse. Los Angeles County Bar Association Committee on Legal Ethics opinion No. 144, supra, pointed out that the personal representative of an estate as such has no interest in a proceeding to determine the succession to the estate.
We concur with the conclusions of Los Angeles County Bar Association Committee on Legal Ethics opinions Nos. 144 and 237, supra, as applied to the facts presented by the request before this Committee. In our opinion, while an administrator with the will annexed, in his representative capacity, obviously owes certain duties to various classes of persons (e.g., beneficiaries, heirs and creditors), his interests in such representative capacity are not, in substance, tantamount to the interests of the beneficiaries under the will; in an heirship proceeding, the personal representative is, in reality, a stakeholder. Accordingly, representation of an administrator with the will annexed, in his representative capacity, is not in substance tantamount to representation of the beneficiaries under the will.
At first blush, it might appear that the assertion of rights as a pretermitted heir amounts to a challenge of the will which (by virtue of the fact that the personal representative has been appointed "with the will annexed") the personal representative is charged with administering. Such an analysis misconstrues the nature of the rights of a pretermitted heir. A pretermitted heir is not a contestant of the will. Such heir simply "succeeds to the same share in the estate of the testator as if he had died intestate." (Prob. Code, 90.) The will is still admitted to probate, and it is still fully operative with respect to all of the estate to which the pretermitted heir does not succeed. Accordingly, the assertion of rights as a pretermitted heir is not inconsistent with that portion of the order appointing the administrator with the will annexed which admits the will to probate.
Two cautionary reminders are appropriate at this point:
1. As Los Angeles County Bar Association Committee on Legal Ethics, opinion No. 193 (1952) pointed out, where the attorney, representing a personal representative, acting as and by virtue of his position as attorney for such personal representative, has obtained confidential information from the adverse parties to the heirship proceeding which potentially could be of benefit in the heirship proceeding to the personal representative in his individual capacity, it would appear to be improper for the attorney to represent the personal representative in his individual capacity in the heirship proceeding.
2. Also, it should be noted that the within opinion is limited to representation of an administrator in his individual capacity in an heirship proceeding. There are other sorts of proceedings and controversies in which representation of the personal representative, both in his representative capacity and in his individual capacity, would seem to be improper. (See, e.g., L.A. Co. Bar Assn. Committee on Legal Ethics, opn. No. 72 (1934).) The controlling aspect of an heirship proceeding giving rise to the conclusions expressed in the within opinion is that the assertion of rights as a pretermitted heir in an heirship proceeding is in no way inconsistent with the appointment, functions and duties of the personal representative in his representative capacity. (Cf. opinion No. 35-1914 of the Committee on Prof. Ethics of the New York County Lawyers Association, to the effect that an attorney cannot ethically represent a legatee in having a will admitted to probate and then assist the same legatee in contesting the will.)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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