Opinion 202001

Summary: An attorney may represent the personal representative in a wrongful death damage claim and provide legal representation to two children, ages 21 and 15, who are statutory beneficiaries.

Facts: A 45-year-old man was killed due to the negligence of a motorist. The man left two children, ages 15 and 21, and a wife. The motorist is insured and has sufficient limits of liability to pay any and all claims arising out of the death. The wife is appointed the personal representative of the estate. The wife employs an attorney to make a damage claim under RCW 4.20.010 (wrongful death), RCW 4.20.046 (general survival statute), and/or RCW 4.20.060 (special survival statute) for (1) economic and noneconomic damages sustained by the wife and children as a result of the death, (2) the economic damages of the estate, and (3) the pain and suffering, anxiety, distress, or humiliation suffered by the husband.

The personal representative (wife) wants the attorney to provide her two children, who are statutory beneficiaries of some of the potential claims, with updates about the case, secure their cooperation in the presentation of damages, defend them at deposition, and prepare them for testimony if the case goes to trial. No guardian ad litem has been appointed for the 15-year-old child.

Issue 1: May the attorney who represents the wife in her capacity as personal representative also represent the wife in her individual capacity as a statutory beneficiary of the claims?

Issue 2: May the attorney who represents the wife also represent the children for the limited purpose of presenting claims for damages for which they are statutory beneficiaries, preparing them to give testimony, and keeping them apprised of the status of the case?

Conclusion:

Issue 1
It is the opinion of the Committee on Professional Ethics that the lawyer can represent the wife in her individual and representative capacities. However, the lawyer should explain to the client the nature of the fiduciary role and insist that the client execute an informed waiver of any right to have the lawyer advocate for the client’s personal interest in a way that is inconsistent with the client’s fiduciary duty.

Issue 2
It is the opinion of the Committee on Professional Ethics that a lawyer who represents the personal representative may also represent the children, who are statutory beneficiaries, for the limited purpose of presenting damages, preparing them to give testimony, and keeping them apprised of the status of the case, consistent with RPC 1.2(c), if the lawyer obtains informed consent. The lawyer may do so provided there are no facts or circumstances creating a conflict which is not remediable under RPC 1.7 (b).

Other considerations:

Given the complexity of Washington’s wrongful death and survival statutory scheme and the potential conflicting interests of the personal representative and statutory beneficiaries, lawyers seeking to represent multiple parties must be extremely cautious in evaluating existing and potential conflicts of interest, apprising all clients of such existing and potential conflicts of interest, and obtaining all necessary consents.

This opinion is limited to the facts stated here. Different facts may lead to a different analysis. For example, if the insurance limits were inadequate, or if there was an aggregate settlement, the opinion would need revision. Oregon Formal Opinion No. 2005-158 [Revised 2015], entitled Conflicts of Interest, Current Clients: Representing Driver and Passengers in Personal Injury/Property-Damage Claims, analyzes some of the ethical issues that may arise in cases where insurance limits are inadequate and/or the parties enter into an aggregate settlement.

Applicable Rules and Statutes (in effect as of the date of this opinion):

RCW 4.20.010 (Wrongful death—Right of action)
RCW 4.20.020 (Wrongful death—Beneficiaries of action)
RCW 4.20.046 (Survival of actions)
RCW 4.20.060 (Action for personal injury survives)

RPC 1.2(c)
RPC 1.7
RPC 1.8(g)

Analysis:

Issue 1:
Under RPC 1.7, the lawyer under these facts may concurrently represent the wife in her individual and representative capacities if the attorney obtains a written waiver under RPC 1.7(b). ACTEC (footnote 1) COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT, at 107 (5th ed. 2016) (given the potential for conflicts where a person wears multiple hats, e.g., where the lawyer represents a person in both an individual and fiduciary capacity, “a lawyer asked to undertake such a dual capacity representation should explain to the client the nature of the fiduciary role and insist that the client execute an informed waiver of any right to have the lawyer advocate for the client’s personal interest in a way that is inconsistent with the client’s fiduciary duty.”)

Issue 2:
1. The Committee on Professional Ethics does not believe the facts present a concurrent conflict of interest under RPC 1.7(a). A concurrent conflict exists when the representation of one client will be directly adverse to another client or where there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client.

a. Will the representation of the children be directly adverse to the wife/personal representative? Under Washington’s wrongful death and survival statutes, the personal representative brings claims for damages for the benefit of the decedent’s statutory beneficiaries, including the children and the wife. The personal representative’s duty is to maximize the total recovery for the statutory beneficiaries. The personal representative does not seek a certain amount of damages for the benefit of the wife, which would necessarily decrease what is left for the benefit of the children. As such, there does not appear to be a conflict between the interests of the wife/personal representative and the children for purposes of seeking such damages. How the damages recovered are apportioned amongst the wife and the children, or what other types of damages the personal representative seeks, is beyond the scope of this opinion.

b. Is there a significant risk that the representation of the personal representative will be materially limited by the lawyer’s responsibilities to the children and vice versa? Given the facts presented, the committee does not believe there is a significant risk of material limitation in the lawyer’s responsibilities to both the children and the wife/personal representative.

2. Under RPC 1.2(c), a lawyer may limit the representation of a client if the limitation is reasonable under the circumstances and the client gives informed consent.

a. Reasonableness: In the facts presented here, the limitation on the lawyer’s representation of the children appears reasonable under the circumstances, given that the claims for damages are for their and their mother’s benefit and the contemplated litigation will not pit the interests of the children against the mother in her individual or representative capacity.

b. Informed consent: Obtaining informed consent from the 21-year-old child is straightforward. Obtaining informed consent from the 15-year-old child is more complicated. The natural guardian of an underage child is his or her parent. Here, the mother is both the personal representative and a statutory beneficiary. However, as explained above, the nature of the damages sought does not lend itself to a conflict of the mother’s interests on one side and the children’s interests on the other. As such, the committee does not see an issue in getting the 15-year-old child’s consent through his or her mother.

3. RPC 1.8(g) prohibits a lawyer from “participat[ing] in making an aggregate settlement of the claims of . . . the clients. . .” Here, the only party asserting claims under the wrongful death and survival statutes is the personal representative. Thus, any settlement under these facts is not an aggregate settlement for purposes of RPC 1.8(g).

4. Facts may emerge that would create a concurrent conflict of interest in the course of a lawyer’s representation of both the children and the wife/personal representative. It is incumbent upon the lawyer to be cognizant of this and to remediate the conflict, if possible, if it arises, per RPC 1.7(b). In the event of a conflict, obtaining informed consent from the 15-year old child in writing as per RPC 1.7(b)(4) may require the appointment of a guardian ad litem.

Footnotes

1. ACTEC is the American College of Trust and Estate Counsel Foundation.