99-6.

• Case Date: August 03, 1999
• Court: Kansas

Kansas Ethics Opinion 1999. 99-6. August 3, 1999KBA Legal Ethics Opinion No. 99-6TOPIC: Conflicts of interest; corporate fiduciary capacities regarding estates; conflicts timing DIGEST: While state law differs on the topic, the conservative view of these questions is that handling a second matter against the bank while representing the bank as corporate fiduciary in an estate or trust matter would constitute a conflict of interest under KRPC 1.7, unless consented to by both parties after disclosure and application of the disinterested attorney rule. Whether a client is no longer a client for KRPC 1.9 purposes depends on the intent of the attorney and the client, not artificial factors such as the passage of time or the payment of fees. Factors creating the end of the relationship can be made part of a contract for legal services under KRPC 1.2. Date of Request: June 2, 1999; released August 3, 1999 Reference: MRPC 12, 1.3. 1.7, 1.9, 2.2, 4.1 The function of the Kansas Bar Association's ethics advisory service is to respond to inquiries from Kansas-licensed lawyers concerning proposed conduct. The limitations on the service do not allow us to render an opinion regarding past conduct or the conduct of someone other than the requesting attorney. The following constitutes only the opinion of the Committee on Professional Ethics-Advisory Services, and is not in any way intended to be a guarantee of a particular result or a conclusion by appropriate authorities. Further, this document constitutes the Committee's opinion based on the facts and information contained in correspondence above referenced. It is based on a review of the disciplinary rules, model rules of professional responsibility and conduct, and applicable case law. This opinion is not a grant of immunity from any form of legal or disciplinary proceeding. The opinion herein is that of a KBA committee without official government status. The Kansas Bar Association expressly disclaims any liability in connection with issuing this opinion. FACTS Scenario I Bank serves as the trustee and fiduciary of an estate. In that capacity, bank hires law firm to represent it as the trustee or fiduciary and give legal advice concerning the estate. This representation is focused entirely upon the estate as to which the bank is a fiduciary, and not with the bank's own affairs. A second party wants the firm to represent that party against the bank in its own corporate capacity (such as negotiation of loan documents or representation of a competing creditor in a bankruptcy. Scenario II Firm represents business client X in a transaction. Transaction closes on a certain date and the matter is concluded. No other work is requested to be performed by firm. There is no other ongoing relationship. A month later a long time, on-going client asks it to represent it in a matter in which X is possibly adverse. The two matters are not related, there is no substantial relationship between the two and no confidential information was obtained in representing X that concerns the second matter. QUESTIONS 1. Is the bank itself the client in the trust or estate proceeding or is its status as Trustee a different category than client? 2. Is the relatively brief period of one month between the first matter preclude "X" from being considered a former client under Rule 1.9 instead of Rule 1.7? 3. If the second scenario matter is concluded but fees and expenses are still unpaid in whole or in part, does that change the conflict analysis from KRPC 1.9 back to KRPC 1.7? ANALYSIS KSA 59-102(3) defines "Fiduciary" as including "personal representatives, trustees and surviving partners administering their trusts." The term includes banks and other corporations authorized by law to act in a fiduciary capacity. A lawyer can represent a fiduciary in two specific ways. If the lawyer represents the fiduciary generally, the lawyer represents the fiduciary's interest as manager of the...