Legal Ethics Opinion #1547
Communication With Adverse Parties: Contact With Potentially
Adverse Parties Who Are Currently Unrepresented
You have presented a hypothetical situation in which an attorney
represents a defendant in a wrongful death action brought under
Virginia Code 8.01-50 to 8.01-56. The plaintiff/maternal aunt
of the decedent, who is represented by counsel, is the
administrator of the decedent's estate. If liability is
established, the plaintiff may be entitled under 8.01-52(4) to
recover the reasonable funeral expenses of the decedent.
However, the judge has already held that because she is not a
member of the exclusive classes of beneficiaries listed in 8.01-
53, the plaintiff is not entitled to recover damages under 8.01-
52(1).
You further indicate that, in her answers to defendant's
interrogatories, plaintiff has listed only maternal aunts,
maternal uncles, and maternal cousins as the statutory
beneficiaries. Similarly, the judge has ruled that none of these
people are entitled to recover damages under 8.01-52(1).
Through investigation, the attorney has located persons whom he
believes may be the decedent's half-siblings, children of the
decedent's father from the father's other marriages. These half-
siblings live in Michigan and North Carolina. There is a dispute
as to the paternity of the decedent; in response to defendant's
request for admissions, the plaintiff has denied that the man
listed on the decedent's birth certificate was the biological
father. If plaintiff's claim is true, the half-siblings would be
unrelated to the decedent.
The defendant's attorney would like to contact the half-siblings
to determine whether they are interested in pursuing a claim for
wrongful death and to determine if they have any damages that
they might be able to recover under 8.01-52(1). The defendant's
attorney believes that the half-siblings had little or no contact
with the decedent during his life and the attorney would like to
employ local counsel to contact the putative half-siblings. The
attorney intends to treat the half-siblings as unrepresented
parties in the case.
You indicate that defendant's attorney informed plaintiff's
attorney that he planned to contact the half-siblings because (1)
no one had entered an appearance on their behalf in this case;
(2) they had not been listed as beneficiaries by the plaintiff;
and (3) plaintiff's attorney had not stated that he had been
retained to represent their interests. Plaintiff has contended
in her response to admissions that the half-siblings are
unrelated to the decedent. There is no indication that the
plaintiff's attorney has ever contacted the half-siblings.
The administrator/plaintiff's attorney has stated that the
defendant's attorney may not contact the half-siblings and claims
that direct contact with the half-siblings is improper.
Specifically, the plaintiff's attorney states: "As the attorney
for the estate, I will be representing their interests if they
wish to assert a claim for solace under the wrongful death
statute, and I feel it would be unethical for you or your firm to
have any direct contacts with them".
You have asked the committee to opine under the facts of the
inquiry, (1) whether the defendant's counsel may contact the
half-siblings, and (2) whether the plaintiff's counsel is
ethically prohibited from representing the half-siblings on the
basis that the interests of the beneficiaries listed by the
administrator conflict with those of the half-siblings.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 5-105(A) which states that 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 to the extent permitted under DR 5-105(C); 7-
103(A) which provides that a lawyer shall neither communicate on
the subject of the representation with a party he knows to be
represented by a lawyer in the matter unless he has the prior
consent of the lawyer representing such party or is authorized to
do so, nor give advice to a person who is represented by counsel
other than the advice to secure counsel, if the interests of such
person are or have a reasonable possibility of being in conflict
with the interests of his client; and 7-103(B) which states that
in dealing with a person who is not represented by counsel, a
lawyer shall not state or imply that he is disinterested and that
he should make reasonable efforts to correct any
misunderstanding.
1. As to whether defendant's counsel may contact the half-
siblings, the committee is of the opinion that such
communication would not be improper under DR 7-103.
You state that no appearance has been entered on behalf
of the half-siblings, that they are not listed as
beneficiaries, and that there has been no declaration
of representation of their interests. The committee
believes, thus, that DR 7-103(A)(1) is inapplicable,
since the half-siblings are not currently represented
by counsel.
Since the half-siblings are unrepresented by counsel,
however, defendant's counsel may contact them only
according to DRs 7-103(A)(1) and (B). Specifically,
defendant's counsel may give no advice other than the
advice to secure counsel. Furthermore, counsel may not
state or imply that he is disinterested in the matter.
2. The committee is of the opinion that it would be
improper, under DR 5-105(A), for plaintiff's counsel to
represent both the plaintiff/administrator and the
half-siblings. The facts indicate that the plaintiff
denies the status of the decedent's biological father.
The facts also indicate that the half-siblings, rather
than the plaintiff or her listed beneficiaries, may be
able to recover damages for wrongful death under
Virginia law. The committee believes, therefore, that
counsel's independent professional judgment on behalf
of the plaintiff is likely to be adversely affected by
the acceptance of representation of the half-siblings.
The committee also believes that the conflict cannot be
cured by full disclosure to, and consent by, the
plaintiff and the half-siblings.
Committee Opinion
August 12, 1993
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