Attorneys – Disqualification – Probate matter – Rhode Island Lawyers Weekly
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Where an attorney who represented a client in a probate matter following the death of the client’s mother has joined a law firm that represented the decedent’s estate, the attorney is disqualified from working on remaining trust-related matters unless the former client removes the disqualification by giving written informed consent.
“The inquiring attorney represented a client in a probate matter following the death of the client’s mother. As part of the representation, the inquiring attorney assisted the client in rescinding a waiver to the admission of the decedent mother’s will into probate, entered his or her appearance in the probate matter, conducted informal discovery, reviewed the decedent mother’s estate plan, communicated with opposing counsel, and advised the client. According to the inquiring attorney, the client had once been named as a beneficiary of the decedent’s estate plan but had subsequently been removed pursuant to an amendment to the plan. Under the amended plan, the estate property passed into a trust over which the decedent’s husband had a Limited Testamentary Power of Appointment to direct the trust proceeds. The client had only a contingent beneficiary right under the trust following the death of the decedent’s husband. The inquiring attorney reports that the client questioned the decedent mother’s competency when she executed the amendment to the estate plan but chose not to challenge the amendment.
“The inquiring attorney’s representation of the client has since ended, and the inquiring attorney has joined a new law firm. The new law firm is the same firm that represented the decedent’s estate during the inquiring attorney’s representation of the now-former client in the probate matter. The inquiring attorney has been asked to assist on the remaining matters related to the administration of the trust. …
“It is the Panel’s opinion that: (1) the inquiring attorney is disqualified from working on the remaining matters related to the trust; (2) however, the former client may remove the disqualification by giving his or her written informed consent to the representation; and (3) if the former client does not provide such consent, no lawyer in the inquiring attorney’s new law firm may work on the remaining matters related to the trust unless the inquiring attorney is screened from the matter, and the former client is informed in writing of the nature of the former representation and is given a description of the screening procedures emplaced. …
“Both Rule 1.9 and Rule 1.10 of the Rules of Professional Conduct are relevant to this inquiry. …
“… The former client’s interests are materially adverse to those of the decedent’s estate because the former client had a beneficiary interest in the estate that was subsequently extinguished by an amended estate plan executed by the decedent. Based on these facts, the Panel finds that the inquiring attorney is disqualified from representing the decedent’s estate pursuant to Rule 1.9(a). …
“However, the disqualification may be removed if the former client gives his or her written informed consent to the new representation. …
“… Relevant here is Rule 1.10(c), which applies because the inquiring attorney has moved to a new law firm. … Under this Rule, no lawyer of the new law firm may represent a person in a matter in which the inquiring attorney is disqualified under Rule 1.9, unless two (2) conditions are met. Therefore, should the former client not consent to the inquiring attorney’s representation of the decedent’s estate, the Panel finds that no lawyer in the inquiring attorney’s new law firm may represent the decedent’s estate unless the following occurs. …
“First, the inquiring attorney must be ‘timely screened from any participation in the matter and . . . apportioned no part of the fee therefrom.’ Rule 1.10(c)(1). Rule 1.0(k) defines ‘screened’ to mean ‘the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.’ …
“Second, the former client must be given prompt written notice enabling him or her to determine the firm’s compliance with Rule 1.10(c). … Comment [8] to Rule 1.10 clarifies that such notice should contain ‘a description of the screened lawyer’s prior representation and of the screening procedures employed[, and] generally should be given as soon as practicable after the need for screening becomes apparent.’ …”
Rhode Island Supreme Court Ethics Advisory Panel Op. 2023-13 (Lawyers Weekly No. 75-041-23) (4 pages) (Dec. 14, 2023).
Click here to read the full text of the opinion.
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