ETHICS OPINION 525-1964 CONFLICTING INTEREST

NUMBER 525

QUESTION.

 

 

I am the attorney for the widow of the above named decedent, who has filed objections to the probate of the will of her late husband.

 

Pending the outcome of the probate proceeding, the proponent of the will, the only beneficiary there under has been appointed Temporary Administrator.

 

Among other assets the estate is comprised by a number of bonds secured by purchase money mortgages on real property. The mortgagor is in default in the payment of interest and amortization as well as taxes. The arrears on the interest and amortization exceed the sum of $10,000.

 

The proponent has dismissed his attorneys and retained others.

 

However, the proponent, as Temporary Administrator, now comes to me and asks me to represent him solely in the collection of the arrears from the mortgagor or institute foreclosure proceedings, because his attorneys are not acting with sufficient speed. It seems to me that for the purpose of foreclosure, the interest of my client and the proponent do not conflict, since it is an act to preserve the assets of the estate in which either or both may share in the future. My client will be entitled to her election as the wife of the decedent, whether the will is admitted to probate or not, since the decedent is survived by a sister.

 

May I have your considered opinion whether or not I will be violating the canons of ethics if I accepted the retainer to collect the arrears from the mortgagor or institute foreclosure proceedings.

 

To the above facts should be added that the widow will consent to her attorney representing the Temporary Administrator for the purpose of foreclosing the mortgages, that the failure to collect arrears is not due to any fault of the Temporary Administrator, and that the mortgagor is an independent third party.

 

ANSWER.

 

The express consent of the widow to her attorney ‘s representing the Temporary Administrator in foreclosing an estate mortgage would remove any violation of Canon 6 forbidding representation of conflicting interests.