Legal Ethics Opinion No. 1472

Conflict--Wrongful Death: Estate Administrator vs. Sole 
Beneficiary

You have indicated that Lawyer A's client's divorced spouse was
killed in an automobile accident and an eight-year-old son of the
client and deceased spouse is the sole beneficiary under
Virginia's wrongful death statute.  You further indicate that the
client applied to the appropriate Circuit Court Clerk to qualify
as administrator of the ex-spouse's estate for suit purposes;
however, the client's ex-sister-in-law had already qualified as
administratrix and obtained counsel, Lawyer B, who had filed a
wrongful death action in behalf of the estate.  Subsequently, the
ex-sister-in-law petitioned the Juvenile and Domestic Relations
Court for custody of the child, but the Lawyer A's client
prevailed in that matter.  

You advise that the client filed an appeal of the Clerk's
appointment of the ex-sister-in-law as administratrix and that
appeal is pending.  The client also filed a special appearance to
object to the wrongful death case proceeding until the question
of the administrator is resolved.  You indicate that the client
specifically objects to the estate's attorney, Lawyer B,
representing the interest of the sole beneficiary [eight year old
son] because the client lacks confidence in the Lawyer B's
protection of the beneficiary's best interest and has had
personal and legal difficulties with that particular B.  Lawyer B
is also representing the administratrix against the client's
appeal of the appointment.

Finally, you indicate that due to a potential conflict on the
part of Lawyer A, he will not represent the estate in the
wrongful death case but would proceed with the appeal of the
appointment and the custody matter if necessary. 

You have asked the committee to opine as to several questions
concerning possible ethical improprieties related to the facts
you have presented. 

     (l)  Can the natural parent and custodian of a sole
          beneficiary legitimately object to the services of the
          estate attorney in regard to a wrongful death claim?

          The committee believes that the question you have
          raised falls outside the scope of the Code of
          Professional Responsibility since it is entirely a
          legal question of who can qualify as the administrator
          of the estate.  Such a determination is beyond the
          purview of the committee's authority.

     (2)  Is it unethical for the estate attorney to ignore the
          father's objections and proceed in behalf of the estate
          in the wrongful death action when the sole beneficiary
          is the child of the father?

          Since no attorney/client relationship exists between
          the estate attorney and the father, and despite the
          fact that the sole beneficiary is the child of the
          father, the committee is of the opinion that it is not
          improper for the estate attorney to ignore objections
          of the father and to proceed in behalf of the estate in
          the wrongful death action.    

     (3)  If the father succeeds in his appeal, becomes the
          estate administrator for suit purposes, discharges the
          estate attorney, and employs the attorney of his
          choice, can the discharged attorney ethically refuse to
          withdraw as counsel for the estate in the wrongful
          death action?

          The appropriate and controlling Disciplinary Rules
          relative to this question are DR 2-l08(A)(3) which
          requires that a lawyer shall withdraw from representing
          a client if the lawyer is discharged by the client; and
          DR 2-l08(C) which requires that counsel of record in a
          court proceeding shall not withdraw except by leave of
          court.  The committee has consistently opined that the
          plain language of these Rules mandate the lawyer's
          withdrawal following discharge by the client, but
          requires that, if a suit has been instituted, such
          withdrawal only be taken after appropriate judicial
          steps are taken.  See LEOs #3l7, 1174.  Thus, should
          the father become the estate administrator for suit
          purposes and discharge the attorney, the committee
          opines that it would be improper for the discharged
          attorney to refuse to withdraw as counsel for the
          estate in the wrongful death action.  See also LEO
          #l452.

     (4)  If the father qualifies as administrator and discharges
          the estate attorney, can the estate attorney ethically
          assert a lien for his services rendered after the date
          he was notified of the father's objection to his
          employment?

          The committee believes that the question you have
          raised falls outside the scope of the Code of
          Professional Responsibility since it is a legal
          question dealing with a statutory attorney's lien. Such
          a determination is beyond the purview of the
          committee's authority.   

Committee Opinion
August 24, 1992