Opinion No. 1992-6

(Inquiry No. 393 )

Conflict of interest; representation of intestate’s estate on behalf of surviving spouse whom intestate intended to disinherit.

An attorney, although having prepared a draft will for a client who intended to leave the bulk of the client’s estate other than to her surviving spouse, whom she had long ago abandoned, may — notwithstanding knowing of the client wife’s announced, but unexecuted intentions — thereafter represent the surviving husband as administrator of the estate and principal or sole distributee.

Code Provisions:
Canon 9
DR 2-1010
DR S-108A
EC 2-7; EC 2-8

Described Facts:
Inquiring counsel reports that a client had consulted counsel and had directed counsel to prepare a will under the terms of which the client’s estate would be left to the client’s brothers, nieces and nephews, but not to her husband, whom she had abandoned seven years earlier. The client reported to counsel, in connection with the professional employment regarding the intended will, that her husband verbally had agreed to waive his statutory elective share rights in exchange for the client’s one-half interest in a mutually held bond fund. Before executing the will thus prepared for her by inquiring counsel, the client, who — although suffering from cancer — thought that she had some six months to live, unexpectedly died, intestate, before she could execute the will. The surviving husband became the administrator and apparent sole distributee of the deceased client’s estate, and requested inquiring counsel to serve as counsel for the administration of the estate.

Mayan attorney, previously having drafted a will for a client who intended to disinherit a surviving spouse but who died intestate before executing the draft will, then accept professional legal employment by the surviving spouse as apparent administrator and sole distributee?

The proffered employment may ethically be accepted.

[1] The Code and Appellate Division Rules do not proscribe inquiring counsel’s acceptance of the proffered employment. There is no conflict of interests, the former (deceased) client no longer having any interests other than in the posture of the estate. The draft will, not having been executed, does not bind the attorney to any particular course of professional conduct in representing the estate, and the interests of the estate are not adverse to any” interests” of the decedent. DR 5-108A. Of course, if, in addition to having drafted the will, the attorney separately had undertaken, as part of his professional employment, not only to prepare and supervise the execution of the instrument but, in addition, to carry out the decedent’s expressed wishes after her death whether pursuant to will or otherwise, then to the extent such implementation by the attorney of the expressed (but not formally documented) wishes of the decedent still lay within the attorney’s powers, the attorney should remain true to his professional promises. That would require the attorney to exercise such powers of persuasion as he lawfully and in a dignified manner could utilize, but — to the extent those were contrary to the administration and distribution rights of the surviving husband -he could not at the same time represent the husband or estate, his independent judgment obviously being incapable of implementation both in support of the deceased’s wishes and in support of the administrator’s disparate needs and wishes. Here, however, inquiring counsel does not report that he undertook with the deceased to do any such thing, but only to prepare and, if the intended testatrix appeared to do so, to supervise the execution of the draft will instrument prepared by the attorney.

The draft will was not necessarily a final expression of the decedent’s testamentary wishes; only an executed instrument can be so regarded, and even an executed will is ambulatory, capable of being revoked or modified or superseded.

[2] Although there is thus no per se prohibition against the described employment, there nevertheless may be circumstances under which the attorney may not or must not accept the engagement: If, for example, because of the attorney’s relationship with the former, now deceased, client or under the terms of his former employment by or promises to her, the attorney is unwilling or unable to devote his full energies and undivided loyalty — e.g.: to his new client under his new employment, then the proffered employment must be declined. DR 5-101A and 105(A).

[3] Furthermore, if the new client’s choice of inqu~r1ng counsel as attorney for the estate is likely to have been influenced, in significant measure, by the prospective new client’s awareness or ignorance of the a ttorney I s involvement with the former (deceased) client’s desires and attempts to disinherit the new client, then disclosure of the pertinent facts, not as affecting the attorney I s independent professional judgment but, instead, as affecting the client’s choice of counsel, would be mandated. EC 2-7, 2-8; £t. DR 2-1010, with respect to “the need to provide information relevant to the selection of the most appropriate counsel.” Non-disclosure, under circumstances where the attorney knows that the client is making employment decisions under misapprehension or ignorance of undisclosed facts, especially where the attorney stands to gain financially from the new client’s uninformed decision to employ him constitutes — at the least — “the appearance of professional impropriety.” Canon 9.

[Approved by the executive subcommittee on February 25,1992; approved by the full committee on March l8, 1992.]