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122 N.J.L.J. 1226
November 10, 1988
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
Representation of Estate in
Wrongful Death Action Where
Partner is "Of Counsel" to
Firm Representing Another Part
The administrators of the estates of A and B jointly sued
several defendants for the wrongful deaths of their respective
decedents. One defendant counterclaimed against the estate of B,
contending that B's own actions contributed to the deaths of both
A and B. The counterclaim thus pinpointed a potential conflict
between A and B.
Until the counterclaim was filed, both estates were
represented by the same law firm, X. After the counterclaim was
filed, the inquirer, then a sole practitioner, undertook
representation of the estate of B from law firm X, which continued
to represent the estate of A. Thereafter, the inquirer became
associated with Attorney Z, who had been a partner in [the] law
firm X when the litigation was begun and, apparently, remains of
counsel to law firm X, even though Z has established his own firm,
with which the inquirer is now associated.
The inquirer asks four questions:
1. Can he continue to represent the estate of
2. If the answer to the first inquiry is
negative, can he continue to represent the
estate of B if all parties consent to his
representation, after full disclosure of the
3. Can law firm X resume representation of the
estate of A and B?
4. Finally, can the law firm X resume
representation of the estate of B?
The answers to all four questions are in the negative. The
inquirer may not continue to represent the estate of B. Similar
inquiries have been raised, inter alia, in Opinions 43, 128, 135,
313, and consistently rejected. Even in the face of Dewey v. R. J.
Reynolds Tobacco Co., 109 N.J. 201 (1988), there are certain
situations in which informed consent is immaterial and ineffective.
See RPC 1.7(c) and l.9(b). Attorney Z, by virtue of his former
partnership and continued association with law firm X, represented-
and indeed, continues to represent - the estate of A, which is in
a conflicting position with the estate of B, based on the
contributory negligence counterclaim filed against the estate of B.
Z's present equivocal status with law firm X does not erase the
conflict with the estate of B. See Opinion 135.
Even though RPC 1.9 does not require a mandatory
disqualification as was formerly required by DR 5-105(D), see Dewey
v. R. J. Reynolds Tobacco Co., supra at 215, the provisions of RPC
l.9(a)(1) do not apply here. Not only is the appearance of
impropriety manifest after making the appropriate factual inquiry,
as required in Dewey, at 214-216, but also, the interests of the
estate of B are clearly and materially adversely to the interest of
the estate of A.
Prior opinions and RPC 1.7(c)(1) confirm that there are
certain situations in which a conflict cannot be erased by full
disclosure to and consent of both estates under DR 5-105(C), now
superseded by RPC 1.7(b)(2). Opinions 57, 135, and 304 underscore
the patent conflict interest present in the situation the inquirer
poses. In Opinion 135, a widow sued the estate of her husband. The
same attorney who had represented the widow on behalf of her
husband's estate, thereafter sought to represent the widow against
the estate. This would have put the attorney in the position of
having once contended the deceased husband was not negligent, and
subsequently contending he was negligent. Opinion 135 found that,
in these circumstances, no valid consent was possible. In Opinion
304, it became evident to the inquiring law firm that controversies
existed among various relatives of the decedent, all of whom were
clients of the law firm in various capacities. Even though each
relative had consented to representation of the other, each
relative relied upon the firm for protection against the interest
of the others. This irreconcilable conflict of interest compelled
withdrawal of the law firm from all representation.
This inquiry presents a parallel situation: The estate of A
can claim against the estate of B on a negligence theory, just as
one party to the suit has already claimed. That party's claim
produced the clear conflict that caused law firm X to withdraw from
representation of B, and now, that conflict and the imputed
knowledge of the underlying facts carries through to the inquirer
through attorney Z. This situation is governed by RPC 1.7(c) and
is, therefore, not susceptible of an informed consent under RPC
1.7(a) or (b).
The answer to the final question is likewise negative: The
same directly adverse interests which caused law firm X to decline
continued representation of the estate of B in the first instance
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