04/06/2005
Recent ABA Ethics Opinions: Lawyers May Help Testator-Clients Disinherit Beneficiary-Clients and May Sue the Insureds of Client-Insurers Without Conflicts Waivers Due to Lack of Direct Adversity
Formal Opinion 05-434: Lawyer Retained by Testator to Disinherit Beneficiary That Lawyer Represents on Unrelated Matters
Formal Opinion 05-435: Ethical Obligations of a Lawyer Who Represents a Liability Insurer Named in Litigation Who Simultaneously Represents a Client Against an Insured of the Liability Insurer
Formal Opinion 05-435: Ethical Obligations of a Lawyer Who Represents a Liability Insurer Named in Litigation Who Simultaneously Represents a Client Against an Insured of the Liability Insurer
Brief Summary
These opinions break new ground in defining the meaning of direct adversity. As the opinions themselves demonstrate, however, attorneys are well advised to avoid reading too much into the opinions. Neither opinion provides carte blanche to do whatever the attorney wishes, however the attorney wishes to do it. And in Opinion 05-434, in particular, it is likely that in a great many of the actual circumstances in which a lawyer represents both a testator and a beneficiary, a conflict will exist. If nothing else, however, these opinions should promote a thoughtful analysis of the reasons why current client conflicts should or should not be said to exist.
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