conflict

While it is impossible to list all of the acts or omissions which constitute unethical conduct, here is one example: “A lawyer represents one party to a transaction while also the attorney for the other side. This is a conflict of interest ¹ and is generally prohibited unless both parties are fully aware of the situation and consent to it.”

Suppose a couple wishes to marry without disturbing the separation of their assets or estates. Accordingly, by appropriate legal agreement, the couple renounces the establishment of a community property regime. By law, their agreement can be modified or terminated only upon joint petition and a finding by a court that allowing it to be changed would serve their best interests².

The couple maintains the meticulous separation of their assets throughout a marriage of many years until one elderly spouse becomes mentally incapacitated by a stroke and the other dies. A lawyer claiming to represent both spouses³ then produces a highly questionable⁴ deathbed will⁵ flatly contradicting the agreement in that it treats the couple's assets as community property rather than separate property⁶ as the couple had intended⁷ and consistently maintained.

Appearing surprised by the existence of the agreement when confronted with it, the lawyer acknowledges there is, in fact, no community property. Regardless, he shrugs off their legal agreement with the off-handed remark⁸ “no one knew about it” and converts the survivor's separate property to his late spouse's estate, providing a boon to that spouse's heirs at the expense of the surviving spouse. Meanwhile, the lawyer and the heirs vigorously prevent⁹ the surviving spouse from ever being advised of the conflict or obtaining his own legal representation.

The lawyer allegedly represented both parties in planning and disposing of their separate estates. Inarguably, if one client were dead and the other incompetent before the lawyer knew of their property separation, the lawyer could not have obtained both clients' informed consent to ignore it. Did the lawyer engage in a prohibited conflict of interest?

1 Other examples: In re: Letellier, 742 So. 2D 544, In re: Cofield, 937 So.2d 330.

2 CC Art. 2329. The manifest purpose of this procedural requirement being to protect the couple's interests, voiding or vacating their agreement without the protection of due process is intrinsically against their interests.

3 The representation is admitted to have begun after the onset of the mental incapacity.

4 E.g., signed in the terminal stage of liver failure, the testator's signature plainly shows her to be so delirious she does not know her own name.

5 He drew a similarly contradictory testament purported to be the disabled spouse's.

6 Property of married persons is either community or separate. CC Art. 2335.

7 An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title. CC Art. 1835.

8 Following the parol evidence rule and statute of frauds, the matrimonial agreement cannot be contradicted by such hearsay (itself generally inadmissible) or other "extrinsic" evidence. CC Art. 1848, CE Art. 802.

9 E.g., by isolating and then interdicting the disabled spouse until his unnatural death while in the heirs' exclusive custody.