Informal Opinion Number: 2021-04

Adoption Date: 2021

Rules: 4-1.7; 4-1.16
Client-Lawyer Relationship
Conflict of Interest: Current Clients
Declining or Terminating Representation
Subject: Conflict of Interest - Representing Mulitiple Parties (a.k.a. Common or Dual Representation); Estates, Wills, and Trusts; Withdrawal from Representation
Summary: representation of multiple siblings in partition action from parent's estate; withdrawal when common representation fails


Question:
Attorney represents three siblings as clients in a pending partition action of a parcel, a family farm, subject to distribution from the estate of siblings’ surviving parent. Originally, all three clients wanted the parcel partitioned equally so each could own a portion of the farm for their individual purposes. Attorney accepted the representations of Clients A, B, and C in the partition action. Client B has now decided to pursue a greater share and has asked Attorney to assist in this action. Clients A and C are opposed to Client B’s request for a greater share and now want the parcel to be sold and proceeds divided equally between A, B, and C. Should Attorney withdraw from the representation of any of Clients A, B, and C, or may Attorney proceed with representing Clients A and C?

Answer: Attorney is required to withdraw from representing Clients A, B, and C. When Attorney accepted the representation of Clients A, B, and C, all three clients wanted the parcel partitioned equally. Now, the objectives of Clients A, B, and C have changed, making their positions directly adverse pursuant to Rule 4-1.7(a). Comment [29] to Rule 4-1.7 provides guidance that a lawyer is “[o]rdinarily…forced to withdraw from representing all of the clients if the common representation fails.” Further, Comment [4] to Rule 4-1.7 provides additional guidance and states: “…whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 4-1.9. See also Comments [5] and [29].” If Attorney withdraws from representing B, Attorney still cannot continue to represent Clients A and C because Attorney would be unable to comply with Rule 4-1.9 as it would relate to Client B as a former client. Continued representation of Clients A, B, or C would result in a violation of Rule 4-1.7, so Attorney is required to withdraw pursuant to Rule 4-1.16(a). Attorney must seek permission of the court to withdraw from the representation in accordance with Rule 4-1.16(c) by informing the court that professional considerations require termination of the representation Rule 4-1.16(c), Comment [3], and assist Clients A, B, and C upon withdrawal as provided in Rule 4-1.16(d). 

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