Legal Ethics Opinion No. 1449

Personal Interest Affecting Representation--Multiple
Representation: Estate Executor Engaging Law Partner to Represent
Estate in Wrongful Death Action 

You have presented a hypothetical situation in which the sole
executor of an estate is a partner in a law firm.  The executor
is required to file a death by wrongful act action for the
benefit of the statutory beneficiaries.  You indicate that, since
the statutory beneficiaries may be somewhat antagonistic towards
each other and because some of the statutory beneficiaries under
the death by wrongful act statute are not testamentary
beneficiaries, the executor advised each beneficiary to seek the
advice of his/her own attorney.  Furthermore, you indicate that
each of the several groups of beneficiaries now want their
various attorneys to represent the executor in the death by
wrongful act claim, however Executor wishes to employ his law
partner for that purpose.  Finally, you advise that Executor does
not anticipate testifying since his qualification may be
demonstrated at trial by his certificate of qualification. 
You have asked the committee to opine whether, under the facts of
the inquiry, it would be proper for Executor to employ one of his
law partners to represent him as plaintiff in the death by
wrongful act action.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 5-105(A), (B) and (C), which provide that a
lawyer shall not accept or continue multiple employment if the
exercise of his professional judgment in behalf of his client
will be or is likely to be adversely affected, except if it is
obvious that he can adequately represent the interest of each and
if each consents to the representation after full and adequate
disclosure; and DR 5-l0l(A) which precludes a lawyer from
accepting employment if the exercise of his professional judgment
on behalf of his client may be affected by his own financial,
business, property, or personal interests, except with the
consent of his client after full and adequate disclosure under
the circumstances.  

In the facts you present, assuming that either the testator's
will specifically granted the Executor the authority to bring
suit or that the Executor is proceeding under the authority
granted by Virginia Code 8.0l-50(B), which directs that a
wrongful death action shall be brought by and in the name of the
personal representative of the decedent, the committee is of the
opinion that the Executor is thereby empowered to employ counsel
to bring such an action.  

However, the committee believes that should the Executor wish to
engage his own partner or firm to bring the action, a personal
financial interest inures to the Executor, creating a requirement
that it be disclosed and consent to such employment received
prior to the Executor engaging his own law firm to serve as
counsel to the estate.  The committee also directs your attention
to the conclusions of LEO #l325 which in pertinent part found
that "when an attorney assumes the responsibility of acting as a
fiduciary and violates his or her duty in a manner that would
justify disciplinary action had the relationship been that of
attorney/client, the attorney may be properly disciplined
pursuant to the Code of Professional Responsibility".  See alsoABA Formal Op. 336.  Thus, the committee is of the view that,
even though the Executor is not acting in an attorney/client
relationship, he must secure the consent of the beneficiaries as
required by the Disciplinary Rules.  Finally, therefore, since
the beneficiaries have not consented to the law partner's
employment, it would be improper for the Executor to so employ
his partner.   

Committee Opinion
June 22, 1992