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Conflict of Interest Rules Do Not Disqualify Lawyer as Trustee

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Conflict of interest

Some hard-and-fast conflict of interest rules govern lawyers. Put simply, a lawyer may not represent anyone in an action against a current client. The lawyer is also disqualified from acting against a former client’s interests. That latter rule applies, however, only to matters related to the actual representation of the former client. Competent clients can waive the conflict of interest, but the lawyer does not get to make the decision.

Can a lawyer represent a married couple in estate planning?

There is an inherent conflict of interest in representing both halves of a marital community. We might, for example, counsel a couple about the tax value of turning their separate property into community property in Arizona. But that means that the sole owner of the separate property will have to give away an interest in their property. If the couple later divorces, the advice will have favored one spouse over the other.

You can spin out a number of similar conflict of interest scenarios. What about the spouse who has never told the other spouse about children born before (or outside) the marriage? Does each spouse have full information about the other spouse’s property? Can one spouse leave a share of the couple’s assets to someone other than the other spouse, even on the first death?

Lawyers frequently represent married couples, especially in estate planning contexts. Before they act, though, the lawyer should explain conflict of interest rules and give each spouse the opportunity to waive — or decline to waive — the conflict. In most cases, couples are more interested in joint estate planning consultations, and coordinated plans. Conflict of interest rules are often waived, even before the lawyer begins to act.

Can conflicts arise later?

Of course, conflicts sometimes appear after a lawyer begins (or even ends) joint representation. That might be the case, for example, when one spouse has an extramarital affair, and the lawyer learns about it. Must the lawyer disclose the information to the other spouse, also her client? May the lawyer remain silent, and simply decline further representation of the couple? Could the lawyer reveal the information, withdraw from representing one spouse, and continue as the other spouse’s lawyer?

Another way the principles of conflict of interest can arise later is where the lawyer acts as trustee, personal representative or other fiduciary for one spouse. Clients without good family options might, for example, name their lawyer as successor trustee in their estate planning documents. Suppose that one spouse dies, and the surviving spouse is incapacitated. Can the lawyer take over as trustee, and make decisions about distributions to the surviving spouse (her former client)?

That is exactly what happened in a recent New York case. Attorney David Gerstein represented a married couple. Mr. Gerstein prepared their wills, powers of attorney and trust. The trust named him as successor trustee.

After the husband died, Mr. Gerstein determined that the surviving wife was incapacitated. He began to act as trustee, making decisions about how to handle distributions and elections available to the surviving spouse.

Meanwhile, the wife’s daughter, who had been named as agent on her power of attorney, disagreed with some of Mr. Gerstein’s choices. She sought his removal as trustee, and as executor (personal representative) of the late husband’s estate. Mr. Gerstein hired lawyers from his law firm to represent him.

Motion to disqualify

The agent/daughter objected to Mr. Gerstein’s acting as trustee, and also to his law firm representing him in the court proceedings. The New York judge assigned to the case agreed, at least as to the representation by Mr. Gerstein’s firm.

The New York Supreme Court, Appellate Division, reversed that finding. The appellate judges noted that, although Mr. Gerstein’s firm did represent the surviving wife, it was not her estate that was being administered or litigated. There were no confidences between lawyer and client that would be compromised. And although the couple had signed a prenuptial agreement before their joint estate planning, there was no involvement by Mr. Gerstein or his firm in connection with interpreting that agreement. Matter of Kopet, August 8, 2018.

The reported decision doesn’t actually deal with whether Mr. Gerstein had any conflict of interest arising from acting as trustee. Since a former client was a beneficiary of the trust he managed, it isn’t hard to imagine that a conflict could arise. That might have been the daughter/agent’s argument in the parallel case. But the appellate decision makes it seem unlikely that Mr. Gerstein could be disqualified as trustee, unless there is substantially more information to be adduced.

What do we (at Fleming & Curti, PLC) do about this problem?

When we represent married couples — or unmarried couples who want to be counseled as a unit — we always explain the conflict of interest problem. We require clients to sign a waiver of any conflict, and urge them to ask questions if they don’t understand the significance. Although we have not had it happen, we would eagerly facilitate any client’s desire to get more advice on the subject.

We also occasionally act as fiduciary for our estate planning clients. It may be that there are no family members available to handle a trust. Sometimes there are family members, but they are unsuitable because of their training, their history, or their limitations. In such a case, we might end up being the trustee, agent, and/or personal representative.

To minimize the prospect of conflicts, we try to explain what we’re doing as we go along. In facts like those faced in the Kopet case, we expect that we would behave pretty much like Mr. Gerstein — including using our own lawyers for at least some of the legal representation if there were disputes to resolve.

We would likely hire lawyers from a different firm if there were any questions about a possible conflict of interest. Of course we would never allow ourselves to be in a position where we were using confidential information against a former client.

The challenge in dealing with potential conflicts of interest is to see them, recognize them, avoid them and deal with them when they do arise. That’s what any good lawyer and law firm would do, and we fancy ourselves leading Tucson elder law attorneys.


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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.