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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-04
Conflicts
In your letter of inquiry date July 22, 1988, you state the following facts. Client died expectedly of cancer leaving a trust fund for her six-year-old daughter. In her will, Client named Attorney X, a member of Firm Y, as personal representative of her estate and trustee of a trust fund she established for her daughter. Before her death Client retained Firm Y to pursue, on her behalf, a wrongful death action for failure to diagnose cancer. Client's daughter will be the sole beneficiary of any recovery in that action. Attorney X will not participated in the wrongful death action.
You have requested the Committee's opinion as to whether there are any potential conflicts of interest which would prevent Attorney X and Firm Y from continuing in their described roles.
The Maryland Rules of Professional Conduct circumscribe a lawyer's activity (and that of his firm) in a matter in which the lawyer's personal interest or the interest of another client (current or former) conflict with the lawyer's obligation to the present client. Based on the foregoing information, there does not appear to be any present conflict of interest. However, you should be aware that there is the potential for Attorney X to be placed in a conflict situation in which he would have to consider the requirements of Rule 1.7(b).
The Committee believes that such a situation could arise if Attorney X as personal representative would have to consider the advisability of accepting a settlement of the wrongful death action. In that circumstance he would be both the client, with fiduciary obligations as personal representative, and also a member of the Firm Y, with a personal interest in the fee earned by the firm.
In that event, Attorney X would be required to consider, as required by Rule 1.7(b), whether he reasonably believes that his actions as personal representative would not be adversely affected by his personal interest. While Rule 1.7(b) also requires the client's consent of continued representation in a conflict situation Attorney X is the client in this situation. If the possibility of a conflict was fully explained to Client at the time she engaged Firm Y and Attorney X or a co-personal representative unrelated to the firm was appointed, the possibility of such conflict resulting in a problem might have been eliminated.
Other than the potential conflict described above, the Committee finds no per se problem in Attorney X acting as personal representative of Client's estate and trustee of her daughter's trust, while Firm X, of which he is a member, pursues the wrongful death action.
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