The facts provided by the inquirer are as follows: The inquirer represents a woman who is the administratrix of the estate of her three-year-old son who died in an automobile accident. The inquirer is in the process of resolving the matter with the liability and underinsured motorist carriers. The inquirer has learned through his investigator that the primary responsibility for the accident may lie with the mother/administratrix based on the theory of the negligent supervision of her child.
A likelihood exists that the mother will be brought in as an additional defendant in the wrongful death action brought by the estate. The inquirer would like to know if he can continue as counsel to the administrator of the estate if the mother appoints a new administrator who in turn appoints inquirer as counsel.
The inquirer did not disclose whether there are any other beneficiaries to the estate, i.e., father, siblings, creditors, etc.
ISSUES AND DISCUSSION:
The inquirer asks whether a conflict of interest would preclude him from continued representation of the estate if appointed by a new administrator.
Since the present administratrix would step aside she would become a former client and Rule 1.9 of the Rules of Professional Conduct would be implicated. It provides:
Rule 1.9 Conflict of Interest: Former Client
A lawyer who has formerly represented a client in a matter shall not thereafter:
a. represent another person in the same or a 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 a full disclosure of the circumstances and consultation; or
b. use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
The inquirer has stated that the mother will consent to his continued representation of the estate if appointed by a new administrator. Under Rule 1.9 the mother is able to waive a conflict of interest after full disclosure of the circumstances and consultation with the inquirer. The inquirer must be sure to fully advise the mother of his intended role on behalf of the new client, the estate. 1
The consultation with the mother should further apprise her that the attorney representing the mother under the homeowner's policy and in her capacity as an additional defendant, may attempt to disqualify the inquirer down the road and such an action may result in delay. The consultation should also include discussion of any other ramifications to inquirer's client such as increased homeowner's premiums, possible tax implications, comparative negligence and/or excess liability issues. Further, a full disclosure under Rule l.9 should include the possibility that the fact-finder in the second matter where the former client is an additional defendant may be alerted to the inquirer's inconsistent positions on behalf of the estate as regards the mother's negligence, with the possible consequence of disqualification and/or serious negative impact on the case.
1. A recent Pennsylvania opinion discusses, inter alia, the duties of an attorney to an estate which include possible derivative duties to all beneficiaries of the estate: In Re Trust of J. Howard Pew, et al., Court of Common Pleas of Montgomery County, Orphans' Court Division, No. 84-0422 and No. 90-1320.