Possible conflict of interest?

[Ellisisle]

What is the name of your state (only U.S. law)? Michigan

Lawyer "Bob" has drawn 2 different wills for mother and a POA for #3 son to manage her affairs (newest will now leaves everything to #3 son). Due to possible financial abuse and neglect by #3 son as POA, "Bob" was contacted by siblings of #3 son and he immediately told siblings that he "does not represent mother and only represents #3 son".

Having originally been mother's attorney, is this now a conflict of interest? By now becoming the attorney of #3 son, is the second will and the POA valid?

 

[latigo]

Having originally been mother's attorney, is this now a conflict of interest?

I don’t see the attorney’s successive professional roles here as being in any way unethical.

It is very true that if the attorney Bob were to represent the No. 3 son in matters adverse to the interests of the son’s mother, it would be unethical as involving conflicting interests between a present and former client.

But here how can it be said that the mother’s interests are adverse to those of her son when she obviously granted him her power of attorney?

is the second will and the POA valid?

It is meaningless to question a will’s validity prior to its being submitted for probate. Until the death of the maker of the will and the instrument is offered and admitted for probate a will has no legal significance whatsoever.

The relationship between the maker of the will and the person that drafted the will would be material only in the sense that there were suspicions of coercion or undue influence. In other words, could it be shown by competent evidence the will represented the wishes of the person that prepared the will rather than those of the testatrix?

As to the validity of the POA. Again it is not a question of who drafted the instrument. If mother doesn’t like it, why did she sign it? And if she wants to revoke it, she is free to do so. And she can do likewise with her will.

Besides it would be the sole province of either the son or the mother to raise any "ethical" issues.

I have the feeling that if you were standing in No. 3’s shoes, we would never have heard of these so-called "conflicts of interest".

 

[tranquility]

I completely agree with latigo with one proviso.

Due to possible financial abuse and neglect by #3 son as POA, "Bob" was contacted by siblings of #3 son and he immediately told siblings that he "does not represent mother and only represents #3 son".

If mom got an attorney to challenge #3 son's actions as POA, the attorney would need to step out and could not represent the son.

 

[Ellisisle]

I don’t see the attorney’s successive professional roles here as being in any way unethical.

It is very true that if the attorney Bob were to represent the No. 3 son in matters adverse to the interests of the son’s mother, it would be unethical as involving conflicting interests between a present and former client.

But here how can it be said that the mother’s interests are adverse to those of her son when she obviously granted him her power of attorney?

A sibling has now received emergency guardianship due to recently discovered very questionable acts by #3 son(possible forgery; self dealing usage of credit cards, ATM withdrawals, and soc. sec. checks; income tax irregularities). POA was "granted" during time period wherein mother was in early Alzheimer's stages and, in fact, was still hospitalized. "Bob" was called to the hospital by son #3 to conduct the business. Siblings (living out of town) were unaware of the POA being done.

With the guardianship in place, the questions about the role of the attorney and most certainly, the actions of son #3, will now be addressed. It just appears as if "Bob" was not acting in the best interests of his first client, the mother, knowing full well that other siblings were a part of the overall picture.

 

[tranquility]

The guardian can now act in mother's stead and the attorney who created the POA will not be able to defend son #3.

I still don't see the attorney's conflict with the creation of the POA or assisting son #3 in his acts as attorney in fact.

 

[Ellisisle]

The guardian can now act in mother's stead and the attorney who created the POA will not be able to defend son #3.

I still don't see the attorney's conflict with the creation of the POA or assisting son #3 in his acts as attorney in fact.

So, from this moment on, you're saying "Bob" is out of the equation in regard to any action the siblings may take against son #3 because at this point he is still legally considered to be the mother's attorney.... even though he says he isn't and that he says he is now the son's attorney?

 

[tranquility]

From the Michigan Rules of Professional Conduct:

Rule 1.9 Conflict of Interest: Former Client

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

(b) Unless the former client consents after consultation, a lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or 3.3 would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as Rule 1.6 or 3.3 would permit or require with respect to a client.

 

[Ellisisle]

From the Michigan Rules of Professional Conduct:

Thank you. This is most reassuring.