Asked in Probate for Colorado

Q: Is it ethical for an atty to represent a beneficiary in a probate case if they are related or married to the beneficiary

Would an attorney be reluctant to represent, say, a close friend or spouse, as an interested party in a probate proceeding, given the attorney might be considered to also benefit if the interested party receives some interest in the estate? This is a fictional hypothetical, so I really only need a general idea of the issues here. The fictional state is Colorado, but I'll take answers relevant to any state. Thank you.

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1 Lawyer Answer
Cameron Kawato
Cameron Kawato
  • Probate Lawyer
  • Fort Collins, CO
  • Licensed in Colorado

A: Hello,

All Colorado attorneys are under strict rules of professional conduct. One very important area of these rules is the conflict of interest, which your question refers to. The rule that will help guide you is Rule 1.7 of the Colorado Rules of Professional Conduct. This rule states that a lawyer may not represent a client if the representation creates of "significant risk" that the representation will be "materially limited" by the lawyer's personal interests. Your question asks if a lawyer would be reluctant to represent a close friend or spouse. In both of these situations, I see no LEGAL reason why the lawyer could not represent them. The lawyer has no personal reason to want their spouse or friend to lose.

However, just because something is legal does not mean it is a good idea. Lawyers typically should be wary of representing spouses and friends in high stakes cases because it might cause a personal rift. Imagine the lawyer takes the case for their close friend but ends up losing by no fault of the lawyer. If the case was high stakes enough, the close friend may now resent the lawyer. Now picture another scenario where the lawyer represents the spouse. The couple is on hard times and really needs a win in the case. The personal pressure of this case is now greater on the lawyer than usual because they, in a sense, have skin in the game as the spouse of the beneficiary. These are a couple reasons why lawyers may be reluctant to represent a spouse or close friend. However, there doesn't seem to be a legal reason as to why they cannot do so.

This fear of representing those close to you does not carry over to all areas of the law, though. I would happily write an estate plan for my friend. I would be very wary of representing my friend if they were up on murder charges.

Hope this helps. Have a nice day.

Kevin Michael Strait agrees with this answer

1 user found this answer helpful

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