Rutgers School of Law, OAL case ACPE617

122 N.J.L.J. 1226
November 10, 1988

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 617

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 B?

        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 facts?

        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 continue unabated.

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