Legal Ethics Opinion #1561

Confidences and Secrets--Former Client--Conflict of Interest: Law
Firm Representing Administrator of Decedent's Estate after Having
Represented Administrator in her Personal Capacity 

You have presented a hypothetical situation in which Husband and
Wife, driving together, are involved in an automobile accident
with a third party.  Husband is killed as a result of the
accident.  Law Firm represents Wife in a claim against Husband's
estate for injuries she received in the accident.  Wife has no
memory of the accident and can offer no testimony as to the
negligence of any party.  The driver of the second vehicle
asserts that the accident was due to Husband's negligence. 
Wife's counsel is aware that a certain witness to the accident
exists but is unable, through use of its investigator, to locate
the witness.  Having no other evidence, it is determined that the
accident was due to Husband's negligence. The claim is settled
without suit being filed, and Wife recovers $18,000 from
Husband's insurance company.  As part of the settlement, Wife
releases the estate from any further liability.

You further indicate that, approximately one year after Wife
settles her individual claim for injuries sustained in the
accident, through a series of events, Wife meets the witness for
whom the investigator had searched.  The witness can testify as
to the fact that the accident was caused solely by the negligence
of the third party. 

Wife qualifies as administratrix of Husband's estate and seeks to
have Law Firm represent her, in her capacity as administratrix,
against the third party.
Finally, you indicate that opposing Counsel wishes to disqualify
Law Firm and Wife from taking part in the claim on the ground
that such action violates Canons 4, 5, and 9 of the Code of
Professional Responsibility.  Law Firm contends that Wife's
settlement in her individual capacity for her own personal
injuries is not binding on the estate, that there is no
confidential information at stake, that it is not taking
inconsistent positions, and that, as a result, dispropriate.

You have asked the committee to opine whether, under the facts of
the inquiry, Law Firm's representation of Wife, in her capacity
as administratrix, presents a conflict of interest under Canons
4, 5, or 9 under the Code of Professional Responsibility.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 4-101(B) which provides that a lawyer shall
not knowingly reveal a confidence or secret of his client; use a
confidence or secret of his client to the disadvantage of the
client; or use a confidence or secret of his client for the
advantage of himself or a third person, unless the client
consents after full disclosure; and Disciplinary Rule 5-105(D)
which provides that a lawyer who has represented a client in a
matter shall not thereafter represent another person 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 disclosure.  The
provisions of Canon 9 are inapplicable here since the facts do
not indicate representation by a former government lawyer or
judge, statements of ability to influence a public official, or
trust account concerns.
The committee is of the opinion that Law Firm's representation of
Wife, in her capacity as administratrix, is not violative of
either Canon 4 or Canon 5 since Wife is in a position to waive
any conflict both as administratrix of the estate and on her own
behalf.  Since she has consented, the committee opines that there
is no impropriety in the representation.  See LEO #l452.

Committee Opinion
December 14, 1993