Legal Ethics Opinion #1524

Conflict of Interest - Personal Interest Affecting Representation
- Multiple Clients - Communicating With an Adverse Party:
Attorney Representing Administrator of Decedent's Estate While
Serving as Co-Administrator

You have presented a hypothetical situation in which a decedent,
a nineteen year old single male ["Decedent"], resided with his
father and siblings after Decedent's mother, divorced from
Decedent's father, had moved out of state several years earlier.

Decedent was killed in an automobile accident in Virginia. 
Several days after his death, his mother, in town for the
funeral, qualified before the clerk of the circuit court as
administrator of his estate for the purpose of bringing a
wrongful death action.  Since the mother was no longer a Virginia
resident, her resident attorney qualified as co-administrator
["Attorney B"].  The father arrived at the clerk's office a day
later and was not allowed to qualify.

You state that the remainder of the statutory beneficiaries, the
father and siblings of the decedent, retained the services of
Attorney A who has spoken with the other counsel who indicated
that the administrator can settle the wrongful death action
without the consent of the other statutory beneficiaries.

Attorney B subsequently requested to be removed as co-
administrator and, instead of requesting that the father be
allowed to serve as co-administrator, requested that the court
appoint another attorney in that capacity.  You further indicate
that the court entered such an order and that neither Attorney A,
representing the statutory beneficiaries, nor the father received
any notice of the Attorney B's request.

Attorney B then filed a wrongful death suit in the circuit court
in the name of the mother only as administrator of decedent's
estate.  
You have asked the committee to opine under the facts of the
inquiry:  

     1.   whether Attorney B, if he were to continue to serve as
          co-administrator of the estate, has a conflict of
          interest which would prevent him from filing and
          prosecuting a wrongful death action as attorney for the
          mother/beneficiary; 

     2.   whether, if there is a conflict, the conflict is cured
          by the removal of Attorney B as co-administrator and
          the substitution of a third party co-administrator; 

     3.   whether the administrators of an estate, as
          fiduciaries, are required to give the father and/or the
          other statutory beneficiaries notice of the hearing for
          withdrawing and appointing a substitute co-
          administrator; and 

     4.   whether Attorney A, retained by four of the five
          statutory beneficiaries of a wrongful death estate, may
          properly contact the insurance adjuster and/or other
          attorneys on behalf of his clients where he does not
          also represent the administrator of the estate.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 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; DR 5-101(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; and DR 7-l03(A)(l) which prohibits a lawyer from
communicating on the subject of the representation with a party
he knows to be represented by a lawyer in that matter without the
prior consent of the lawyer.  

As to your first question regarding whether Attorney B has a
conflict of interest in representing the mother/beneficiary in
the wrongful death action, the committee is of the opinion that
the attorney's status as co-administrator of the estate
constitutes a personal interest, creating a requirement that it
be disclosed and consent to such employment received prior to the
attorney/co-     administrator representing the
mother/beneficiary.  Since the other statutory beneficiaries have
not consented, indeed even been consulted, as to the attorney/co-
administrator's employment, it would be improper for him to
represent the mother/beneficiary in the wrongful death action.

Regarding your second question, the committee is of the opinion
that the conflict in representing the mother/beneficiary in the
wrongful death action, as described above, is curable only by
consent of all the statutory beneficiaries.  Thus, the committee
is of the view that the conflict is not cured by the removal of
Attorney B as co-administrator and the substitution of a third
party co-administrator. 

As to your question of whether the administrators of an estate,
as fiduciaries, are required to give the statutory beneficiaries
notice of the hearing for withdrawing and appointing a substitute
co-administrator, the committee believes that this issue raises a
legal question the determination of which is beyond the purview
of the committee. 

Finally, as to your inquiry regarding whether Attorney A,
retained by four of the five statutory beneficiaries of a
wrongful death estate, may properly contact the insurance
adjuster and/or other attorneys on behalf of his clients where he
does not also represent the administrator of the estate, the
committee directs your attention to prior LEOs #ll69 and 687
which the committee believes are dispositive of the issues
raised.  Thus, in the facts you present, the committee is of the
opinion that it would be improper for Attorney A to contact the
insurance adjuster if the defendant insured is represented by
counsel; although it would not be improper for Attorney A to
contact the attorney on behalf of A's clients.

Committee Opinion
May 11, 1993