Can one firm represent the estates of both the pilot and the passenger killed in the same plane crash when the defendant will likely join the pilot's estate?

Plain-English summary

A law firm was asked to represent the estates of a husband and wife killed in a private airplane crash. After investigating, every member of the firm concluded the sole cause was a serious defect in the plane and that there was no evidence the husband-pilot was negligent; the firm advised the wife's executor that making the husband's estate a party to the wife's action would be frivolous and a Rule 11 violation. The firm also recognized that defendants typically join the pilot as a third party. The inquiry asked whether the firm could represent both estates even though the original defendant would probably join the husband's estate.

The opinion concluded yes, provided informed consent is obtained from both parties (Rule 5.1(b)). It recognized that the firm had made the judgment, under Rule 5.1(b)(1), that representation of neither client would be adversely affected. The firm has a continuing obligation under Rule 5.1(c) to evaluate the potentially conflicting interests, and if a conflict does develop, the firm could be required to withdraw from representing both clients (Rule 5.1(d) and Rule 4(b)).

Currency note

This opinion was issued in 1987, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 5.1 on conflicts of interest and Rule 4 on confidentiality) have since been renumbered and revised (the corresponding Model Rules are 1.7, 1.6, and 1.16). 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 Treat this page as historical context, not current guidance.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: Can one firm represent both estates after a crash that will pit them against each other?

A: Yes, with informed consent from both. The opinion concluded the firm could represent both estates where it reasonably judged neither representation would be adversely affected (Rule 5.1(b)).

Q: What ongoing duty does the firm have after taking on both estates?

A: The opinion concluded the firm has a continuing obligation under Rule 5.1(c) to evaluate the potentially conflicting interests as the case develops.

Q: What happens if a real conflict develops between the two estates?

A: The opinion concluded the firm could be required to withdraw from representing both clients (Rule 5.1(d) and Rule 4(b)).

Background and rules framework

The opinion applied North Carolina Rule 5.1 on conflicts of interest (corresponding to Model Rule 1.7), which allowed common representation on informed consent where the lawyer reasonably believed neither client's interests would be adversely affected, together with the continuing-evaluation and withdrawal provisions and Rule 4 on confidentiality (corresponding to Model Rules 1.6 and 1.16). The analysis turned on the firm's documented judgment that the husband was not negligent and that the interests were not actually adverse at the outset.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(b), (c), (d) (conflicts; consent; continuing evaluation; withdrawal)
• North Carolina Rule 4(b) (confidentiality)
• MR 1.7 (concurrent conflicts); MR 1.6 (confidentiality); MR 1.16 (declining or terminating representation)

See also

• NC Ethics Op. RPC 32: representing one former joint client in divorce
• NC Ethics Op. RPC 42: representation of interests adverse to a former client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-28/

Original opinion text

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

Inquiry:

Law firm has been contacted about representing the estates of a husband and wife who were killed in a private airplane crash. Law firm has carefully investigated the collision, and each member of the firm believes that the sole cause of the collision was a serious defect in the plane. Law firm has advised the executor for the wife that there is no evidence that the husband/pilot was negligent and that the law firm believes that making the husband's estate a party to the action brought by the wife's estate would be frivolous and a violation of Rule 11 of the Rules of Civil Procedure.

Law firm has further advised the executor for the wife's estate that it is the usual and typical defense on the part of the defendant automatically to join the pilot as a third party. Law firm believes the facts clearly show there was no negligence on the husband's part. May law firm ethically represent the estate of the husband as well as that of the wife, even though there probably will be a joinder by the original defendant of the husband's estate?

Opinion:

Yes, provided that informed consent is obtained from both parties. See Rule 5.1(b). This opinion recognizes that law firm has made a judgment that the representation of neither client will be adversely affected, pursuant to Rule 5.1(b)(l). Law firm has a continuing obligation under Rule 5.1(c) to evaluate the potentially conflicting interests. If a conflict does develop, law firm could be required to withdraw from representation of both clients. Rule 5.1(d) and Rule 4(b).