ISBA Board of Governors Approves Two Ethics Opinions
The Illinois State Bar Association’s Board of Governors approved two new Professional Conduct Advisory Opinions on March 26 during its regularly scheduled Board meeting.
The opinions address a lawyer representing surviving spouse as both estate administrator and renouncing spouse, and a lawyer's disclosure of client estate planning documents after the client's death.
Opinion 21-01 addresses a lawyer representing a surviving spouse as both estate administrator and renouncing spouse. A concurrent conflict of interests exists if a lawyer represents the surviving spouse as the administrator of his deceased spouse’s testate estate and also represents the surviving spouse in renouncing the will and in seeking a spousal award. The conflict is waivable if: (i) the lawyer reasonably believes she will be able to provide competent and diligent representation to each affected client, including the surviving spouse, individually and in a fiduciary capacity; (ii) the lawyer makes clear her relationship to the parties involved; and (iii) each affected party, including the spouse individually, the beneficiaries or, if applicable, the natural or court-appointed guardian of minor beneficiaries, or a guardian ad litem appointed to protect their interests, gives informed consent.
Opinion 21-02 addresses a lawyer's disclosure of client estate planning documents after the client's death. The Illinois Rules of Professional Conduct allow a lawyer to provide the executor and trustee named in a deceased client’s estate planning documents with the final executed copies of those documents and whatever portions of the estate planning file may be helpful to the named fiduciary to carry out the deceased client’s intent expressed in those documents. The lawyer may give other family members limited information about the deceased client’s estate planning documents and file if providing that limited information will allow a beneficiary to enforce her rights or if the disclosure might prevent litigation. If a lawyer receives a subpoena issued in a will or trust contest for a deceased client’s estate planning file, the lawyer should contest the subpoena and not comply until a court has ordered the lawyer to comply