Based on the hypothetical facts presented, you have asked the committee to opine whether it is ethically permissible for Lawyer One to represent Dottie as executrix of Bernice's estate and individually in litigation over Alice's joint bank accounts when Lawyer One had been a co-administrator of Alice's estate. You have also asked whether Lawyer One is permitted to represent Bernice's estate in litigation over a partition of real estate that Alice owned at her death. A lawyer who has represented a client in a matter shall not thereafter represent another person in the same or substantially related matter if the interest of that person is adverse in any material respect to the interest of the former client unless the former client consents after disclosure. On the facts presented, Carl is not a former client of Lawyer One since Carl had retained Lawyer Two to represent him and serve as co-administrator of Alice's estate with Lawyer One. Since Lawyer One was co-administrator of Alice's estate, he was his own client for practical purposes.
Adversity seems to be apparent.
Substantial relatedness between the matters in a former representation and a current representation is a fact-specific inquiry from case to case. In previous opinions, substantial relatedness depended upon whether the same parties, the same subject matter, or the same issues were present. The committee referred to cases defining substantial relatedness in terms of the matters or the issues being essentially the same, arising from substantially the same facts, being byproducts of the same transaction, or entailing a virtual congruence of issues or patently clear relationships in subject matter. Id. Applying those principles of substantial relatedness, the committee concludes that Lawyer One's representation of Dottie, individually and as executrix of Bernice's estate, in litigation over survivorship of Alice's joint bank accounts would be substantially related to Lawyer One's former representation as co-administrator of Alice's estate. The committee's understanding is that Lawyer One as co-administrator of Alice's estate may have been required to report Alice's interest in multiple party accounts on the inventory of her estate.