Can one lawyer or firm represent both the survivors in a wrongful-death action and the decedent's estate?

Plain-English summary

The committee was asked whether a firm or an attorney can represent both a wrongful-death action for a decedent's survivors and the decedent's estate. It answered no.

The committee began from imputation: attorneys in a law firm are treated as a single entity for conflict purposes under Rule 1.10(a), so a conflict held by one lawyer is the firm's conflict. It then applied Rules 1.7 and 1.8(g). Quoting the comments to Rule 1.7(b), it explained that an impermissible conflict may exist because of a substantial discrepancy in the parties' testimony, incompatibility in positions toward an opposing party, or substantially different settlement possibilities among the claims. Representing both a personal-injury client and an estate can produce those conflicts, so both the individual attorney and the firm have a problem. The committee added that Comment 12 may apply where the lawyer must serve as a fiduciary or represent both an estate and its beneficiaries, a built-in conflict.

The committee noted the disqualification can be waived under Rule 1.7(b)(1) and (2): the attorney must reasonably believe the quality of representation will not be adversely affected, and the clients must be consulted, fully informed, and give permission. Separately, Rule 1.8(g) bars an attorney from participating in an aggregate settlement of the claims of two or more clients without consulting the clients and obtaining their consent after that consultation.

Currency note

This opinion was issued in 1986, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Why is representing both the survivors and the estate a conflict?

A: The opinion states that an impermissible conflict may arise from a substantial discrepancy in the parties' testimony, incompatible positions toward an opposing party, or substantially different settlement possibilities among the claims, all of which can occur when one lawyer represents both.

Q: Does one lawyer's conflict disqualify the whole firm?

A: Yes. The opinion states that under Rule 1.10(a) attorneys in a firm are a single entity for conflict purposes, so the individual lawyer's problem is also the firm's problem.

Q: Can the conflict be waived?

A: The opinion states the disqualification may be waived under Rule 1.7(b)(1) and (2) if the attorney reasonably believes representation will not be adversely affected and the clients are consulted, fully informed, and consent.

Q: What does Rule 1.8(g) add about settlement?

A: The opinion states that a lawyer may not participate in an aggregate settlement of two or more clients' claims without consulting the clients and obtaining their consent after consultation.

Background and rules framework

The opinion interprets Montana's general conflict rule (Rule 1.7; Model Rule 1.7) and its comments, the bar on aggregate settlements without client consent (Rule 1.8(g); Model Rule 1.8(g)), and the imputation of conflicts within a firm (Rule 1.10(a); Model Rule 1.10(a)).

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.7 (conflict of interest: general rule), comments 3, 6, 10, 11, 12 / Model Rule 1.7
• Mont. R. Prof. Cond. 1.8(g) (aggregate settlements) / Model Rule 1.8(g)
• Mont. R. Prof. Cond. 1.10(a) (imputation of conflicts) / Model Rule 1.10(a)

See also

• State Bar of Montana Ethics Op. 850916: One Firm Cannot Sue Its Own Current Client
• State Bar of Montana Ethics Op. 890317: Simultaneous Representation by an Attorney
• State Bar of Montana Ethics Op. 951231: No Conflict for an Attorney Acting as Trustee

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/860218.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion
QUESTION PRESENTED: Can a firm or an attorney represent both (1) a wrongful death action for a decedent's survivors; and (2) the decedent's estate?

ANSWER: No.

ANALYSIS: First of all, attorneys in a law firm are a single entity for the purposes of conflicts of interest. Model Rule 1.10(a). Model Rules 1.7 and 1.8(g) govern the question presented. Rule 1.7(b) especially comments 3,6,10,11 and 12 pertain. "An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question." Obviously, the representation of a personal injury client and an estate by the same attorney or firm may cause impermissible conflicts. Therefore, the attorney who represents a decedent's survivor(s), as a member of a firm representing the decedent's estate and others, has a problem, and the firm has a problem as well.

Comment 12 may also apply. The firm or attorney may have to represent the client as fiduciary or may have to represent the client as an estate and the beneficiaries (es ipso: built in conflict of interest).

The disqualification imposed by the rule may be waived under the conditions stated in Rule 1.7(b)(1) and (2). Therefore, in order for the attorney to proceed under the rule, they must believe that the quality of representation will not be adversely affected by the facts of the situation, and the clients must be consulted and fully informed and their permission obtained.

Rule 1.8(g) also states that an attorney will not participate in the aggregate settlement of a claim where the attorney represents two or more clients without consulting with the clients concerning the problem and obtaining consent from those clients subsequent to that consultation.

                         THIS OPINION IS ADVISORY ONLY