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                                         91 N.J.L.J. 673
                                        October 17, 1968

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 135

Conflict of Interest
Suing Estate Previously Represented


    Inquiry has been made as to whether a conflict of interests exists within the purview of the Canons of Professional Ethics, Canon 6, under the following circumstances.
    A husband and wife, living together and employed by the same employer, were involved in an auto accident on their way to work. The husband who was driving was killed, the wife injured. The wife consulted an attorney who advised her of her rights and eventually
procured her appointment as administratrix, ad prosequendum and general administratrix of the estate of her deceased husband. On her behalf he instituted suit against the driver and the owner of the other vehicle seeking damages both for the death of her husband and for his pain and suffering. Prior to trial this action was settled.
    Thereafter the attorney instituted a separate action on behalf of the wife for her personal injuries against the driver and owner of the other vehicle. A third-party complaint was filed by the attorney for the driver and owner of the other vehicle against the husband's estate. The husband's insurance carrier retained an attorney to defend the third-party complaint. The wife's attorney then filed a claim against the third-party defendant (the husband's estate) and the attorney for the insurance carrier answered this claim also.
    We are also informed that the attorney for the wife performed some modest services in settling the husband's estate and that the insurance coverage of either the husband or the owner of the other vehicle is ample to pay any sustainable verdict.
    Two pronouncements by our Supreme Court bear on the determination of this question. One is the decision in Long v. Landy, 35 N.J. 44 (1961), in which the Court held that the rule preventing one spouse from suing the other spouse for damages arising from a negligent tort does not bar a suit against the estate of a deceased spouse. The other is the directive appearing in 91 N.J.L.J. 81 (February 8, 1968), in which the Court advised the bar that attorneys may not represent both the passenger and the
driver of an automobile where the passenger has a cause of action against the driver.
    The rationale of Long v. Landy, as stated at page 53, is that the danger of fraud and collusion between spouses is no longer present when one spouse has died. It does not follow, however, that the death of a spouse automatically eliminates any conflicting representation on the part of the attorney. He has represented the widow on behalf of the estate of the deceased husband and is now representing her in a claim against the same estate. Clearly a conflict exists, the only question being whether or not it violates Canon 6. We think it does.

    The existence of ample liability insurance is immaterial. The Supreme Court's directive of February 8, 1968 makes no exception for such cases. The attorney is in the position of having once contended that the deceased husband was not negligent. He is now contending that the deceased husband was negligent. While Canon 6 makes exceptions possible for situations in which express consent is given, no such consent is possible here.
    The American Bar Association, Committee on Professional Ethics, has held in Informal Opinion 723 (1964), that a lawyer representing a guest in asserting claims against the insurers of the two vehicles involved may not represent the driver of the car in which the guest was riding where there is any possible liability on the part of the driver even though the guest waives any claims against the driver. In the case presented to us, not only has the claim not been waived but a claim has actually been asserted against the driver.
    Drinker, Legal Ethics (1953), in discussing Canon 6 at page 105, points out that even where all parties agree, the appearance of an attorney on both sides of the same controversy will often give an unfortunate impression to the public.
    In the case under consideration, the attorney has represented the deceased husband's estate and is now representing the widow against her husband's estate. The conflicting loyalties in cases of this sort require that the attorney withdraw from further representation of the widow in this matter.

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