Estate’s former attorney disqualified from representing client in action to remove executor

HNWElder Law, Estate Administration and Probate

A court rules that attorneys for estates necessarily have an attorney-client relationship with the estate’s executor. This disqualifies an estate’s former attorney from later representing another client in an action to remove the executor.

In his capacity as the executor of the estate, Frank Harris retained an attorney, Joseph Brady, to assist in the administration of the estate. Counsel represented the estate for one year, until his representation was terminated. Thereafter, a beneficiary of the estate petitioned the court to remove the executor named under the will and to appoint her instead. The challenger was represented by the former attorney of the estate who was terminated.

The executor challenged the petition and moved to disqualify the challenger’s counsel, asserting that Mr. Brady’s former representation of the estate created an impermissible conflict with his new client. Mr. Brady opposed the petition, arguing that no conflict existed because in representing the estate, he represented only the estate and not the estate’s executor.

The Court disagrees with Mr. Brady’s argument that he represented the estate and not the executor. “When attorneys state they are appearing on behalf of an estate,” the court writes, “such a statement is technically incorrect because the attorney is representing the personal representative of the estate, and not the estate itself or the beneficiaries of the estate.” Accordingly, an impermissible conflict of interest exists and the court grants the motion to disqualify Mr. Brady as counsel for petitioner.

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