LEO 1225

LEO: Confidentiality and Secrets - Conflict of LE Op. 1225

Confidentiality and Secrets - Conflict of Interests - Multiple

Representation - Wrongful Death Action: Attorney

Representing Uncle of Deceased After

Acquiring Secret of Former Client,

Deceased's Wife.

April 26, 1989

You advise that Attorney X was retained by Client A to pursue a wrongful

death action for her husband's death in a head-on collision. After having

Client A execute an employment agreement, Attorney X planned to have his

client qualified as administratrix of the estate of her deceased husband.

In discussing the matter with Client A, Attorney X learned that the

decedent's uncle, whom he knew professionally, had information about the

collision. Later, during a conversation with decedent's uncle, Attorney X

learned that the uncle had petitioned the court to be appointed as trustee

for Client A's infant daughter, whereupon Attorney X decided to defer

Client A's qualification as administratrix until he knew more about the

situation. That afternoon, decedent's uncle came to Attorney X's office

and stated that the Department of Social Service was investigating

allegations of child abuse by Client A against her infant daughter.

Decedent's uncle made it clear that his sole interest was to protect the

child and the child's share of any recovery from the wrongful death action

which could be misused by Client A. The following day, Attorney X went to

the clerk's office to ascertain whether decedent's uncle had been

appointed as administrator of the estate of Client A's deceased husband.

Upon discovering that the uncle had been qualified, Attorney X notified

Client A that he could not longer represent her in the wrongful death

matter since the cause of action belonged solely to the personal

representative.

Subsequently, Client A released Attorney X and his firm from representing

her. Attorney X was then approached by decedent's uncle to represent him

as administrator in wrongful death action.

In addition, you indicate that there is animosity between Client A and

decedent's uncle and that Client A has retained another attorney to

represent her in a petition to the court to remove decedent's uncle as

administrator.

You wish to know whether it is ethically permissible for Attorney X to

represent decedent's uncle in the wrongful death case, if he retains the

status of personal representative, after having previously been retained

by Client A in the same action. You believe that the subsequent

representation of decedent's uncle would not be in violation of

Disciplinary Rule 5-105 since there is parity between the interests of the

administrator and Client A and both wish to recover as much as possible

from the wrongful death case. The amount awarded to the beneficiaries

obviously would be determined by the court or a jury.

The Committee would direct your attention to DR:5-105(D), which is the

appropriate and controlling rule relative to your inquiry. The rule

provides that a lawyer who has represented a client in the matter shall

not thereafter represent another in the same or substantially related

matter if the interest of that person is adverse in any material respect

to the interest of the former client, unless the former client consents

after full and adequate disclosure.

The Committee is of the view that while both Client A and the

administrator share a common interest of recovering the maximum amount of

damages from the wrongful death action, it is obvious that they have

potential differing interests. Since Client A is also a beneficiary of the

estate, Attorney X's representation of the administrator who, as you have

stated, is solely protecting the interests of the child beneficiary would

be adverse to interests of Client A. Thus, without consent from Client A,

Attorney X's representation of the uncle would be improper.

Furthermore, the Committee is of the view that the information gained

from decedent's uncle during the Attorney's representation of Client A and

concerning the child abuse allegations for which Client A is the subject

of an investigation may constitute a secret, as it is likely that

disclosure of such information would be embarrassing and detrimental to

Client A. The Committee would admonish against revealing a confidence or

secret of a client or using the same to the disadvantage of the client or

to one's own advantage or a third person's advantage, unless the client

consents after full disclosure. (See DR:4-101(A), (B))

The Committee opines that the mere representation of a client whose

interests are adverse to a former client does not warrant automatic

disqualification on ethical grounds. Where Attorney X has obtained Client

A's informed consent thereto after full disclosure under the circumstances,

and provided that Attorney X does not reveal or use the confidences or

secrets protected by the attorney/client relationship, representation

would not be improper. (See LE Op. 718 and LE Op. 1039)

Committee Opinion April 26, 1989

CROSS REFERENCES