September 7, 1982
It is inappropriate for a lawyer who has represented the estates of a husband and wife to cease representation of one estate to bring an action against that estate on behalf of the other estate.
References: MCPR DR 4-101(B)(3), DR 5-105; CI-155, CI-250, CI-350, CI-371, CI-465, CI-492.
A husband and wife were killed in an automobile accident after running into a parked car. One lawyer represents the personal representative of both estates. There may be a dram shop action against the catering hall and the truck owner and operator, in which the wife's estate would sue the driver/husband's estate along with the dram shop defendant and truck owner-operator.
MCPR DR 5-105 states:
"A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except the extent permitted under DR 5-105(C).
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible affect of such representation on the exercise of his independent professional judgment on behalf of each."
In the context of representing an administrator of an estate, in CI-155 it was inappropriate for a lawyer to represent an administrator in his fiduciary capacity as an administrator, as well as in his individual capacity as a challenger to the estate. In that opinion, this committee noted that to represent both interests would be impossible because, as the administrator, the lawyer would be obliged to protect the estate and the beneficiaries but representing the individual, he would wish challenge the proposed distribution of the assets of the estate to those same beneficiaries.
ABA i161 stated:
"An attorney who has represented an administratrix of an estate cannot accept employment in an action against such administratrix in connection with her duties as such; nor may his associate accept such representation."
In accord CI-371. Thus, even where representation of the estate has ceased, it would be inappropriate to bring an action against the estate on behalf of another client.
CI-371 noted that a lawyer would be prevented from disclosing the secrets or confidences of his former client without written permission, and yet to not use that information might inhibit the lawyers effective representation of the subsequent client. Such a dilemma may require a lawyer to refrain from representing any party in the matter.
In a number of opinions, we have stated that a lawyer may represent a client in a matter against a former client, but only where the representation of the former client has ended, and the former representation involved an entirely unrelated matter. CI-250. If the second representation involved a matter connected with the first representation, or would result in a conflict of interest or the disclosure of confidences, then, under DR 4-101(B)(3), the lawyer could only use that information if the former client consented under DR 4-101(B)(2), even with full disclosure and permission by the former client. CI-492, CI-465.
Clearly, to represent both estates as the same time would be inappropriate, even if representation of the husband's estate was only for probate purposes. Representation of the wife's estate alone might be prohibited if the lawyer obtained relevant confidences and secrets before withdrawing from the husband's representation.
MCPR Canon 9 requires a lawyer to avoid even the appearance of professional impropriety. This Canon acts as a catch-all and general guideline to lawyer's in structuring their professional behavior. In applying it to this situation, it would be inappropriate for the lawyer to represent the wife's estate in any tort action against the husband's estate. CI-465 states:
"When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and champion." Quoting from Grievance Committee v. Rattner, 152 Conn 59, 203 A2d 82 (1964).
To terminate employment with the husband's estate for the purpose of bringing an action on behalf of the wife's estate would raise serious doubts as to the propriety of the entire representation of the husband's estate.