concurring and dissenting.
[¶ 31] I concur in the majority’s analysis of N.D.R.Prof. Conduct 1.14 and in the discipline imposed.
[¶ 32] I respectfully dissent from the majority’s analysis of Rule 1.7(a), N.D.R.Prof. Conduct. On that issue, I would accept the findings and conclusions of the hearing panel and hold that a violation has occurred. The hearing panel concluded a violation occurred because Kuhn:
Represented Ronald and Randy, who were seeking appointment as guardians/conservators over Kuhn’s long-time client, Jake, and then drafted a new will for Jake, which favored the interests of Ronald and Randy, after Kuhn had represented Ronald and Randy at the guardianship/conservatorship hearing and after Jake had been judicially declared incapacitated.
Because the record does not establish Jake Leno’s understanding of his relationship to Kuhn, I do not understand the hearing panel’s conclusion to establish a violation of Rule 1.7(a) solely by virtue of Kuhn’s representation of Ronald Leno and Randy Leno at the guardianship/conservatorship hearing. Rather, it is by the subsequent acts of Kuhn in drafting and assisting in the execution of a will by Jake Leno that advances the interests of Ronald Leno and Randy Leno at a time when Kuhn has not taken the appropriate measures to determine that such advancement is the intent of Jake Leno.
[¶ 33] Rule 1.7(a), N.D.R. Prof. Conduct, provides that “[a] lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person.... ” The violation is premised on the findings of the hearing panel that *204Kuhn had drafted a prior will for Jake Leno in 2005. However, as the hearing panel found, “[t]he new will was more favorable to Ronald and Randy, whom Kuhn had represented at the guardianship/con-servatorship hearing, and less favorable to Kathleen, than Jake’s prior will.”
[¶ 34] For purposes of the new will, Kuhn’s obligations of loyalty were solely to Jake Leno, yet Kuhn acted in violation of a guardianship order of which he was fully aware. He took no appropriate measures to engage the guardian to assure that Jake Leno had formed a new intent to advance the interests of Randy Leno and Ronald Leno, with whom Kuhn had recently had an attorney-client relationship adverse to the express wishes of Jake Leno. Kuhn represented the sons seeking to have them appointed as guardian as against the position of Jake Leno who did not want a guardian appointed. The benefit to Randy Leno and Ronald Leno in the new will is contrary to the express provisions of Jake Leno’s 2005 will.
[¶ 35] The hearing panel found: “Kuhn neither consulted with nor obtained authority from GAPS before drafting a new will and presenting the same to Jake. Kuhn’s testimony that he believed that GAPS was aware of Jake Leno’s desire to make a new will is not credible.” Not only did the hearing panel find Kuhn not to be credible in believing GAPS was aware that Jake Leno desired to write a new will, but Kuhn was aware that GAPS, as Jake Leno’s legal guardian, would have to be involved in the creation of a new will, if Jake Leno had testamentary capacity. N.D.C.C. § 14-01-03.
[¶ 36] Under these circumstances, where the effect of Kuhn’s conduct is to advance the interests of former clients recently adverse to Jake Leno, whose interests in the creation of a new will demand Kuhn’s sole loyalty, and where Kuhn has taken no appropriate steps to determine Jake Leno’s intent with respect to those formerly adverse clients, clear and convincing evidence indicates Kuhn violated N.D.R. Prof. Conduct 1.7(a).
[¶ 37] DALE V. SANDSTROM, J., concurs.