Can a lawyer who represented a widow on behalf of her late husband's estate later sue that same estate on the widow's own injury claim?

Plain-English summary

A husband and wife were in an auto accident; the husband, who was driving, was killed and the wife was injured. The wife's attorney procured her appointment as administratrix of her husband's estate and brought suit on her behalf against the other vehicle's driver and owner, seeking damages for the husband's death and pain and suffering; that action settled. The attorney then brought a separate action for the wife's own personal injuries against the same driver and owner. The defendants filed a third-party complaint against the husband's estate, and the wife's attorney filed a claim by the wife against the third-party defendant, the husband's estate. The attorney had also performed some services in settling the husband's estate.

The Committee identified two governing pronouncements of the New Jersey Supreme Court. Long v. Landy, 35 N.J. 44 (1961), held that the rule barring one spouse from suing the other for a negligent tort does not bar a suit against the estate of a deceased spouse, because the danger of fraud and collusion is no longer present once a spouse has died. A directive at 91 N.J.L.J. 81 (February 8, 1968) advised the bar that attorneys may not represent both the passenger and the driver of an automobile where the passenger has a cause of action against the driver.

The Committee held that Long v. Landy removed the substantive bar to the wife's claim against the estate, but did not eliminate the conflict in the attorney's representation. Because the attorney had represented the widow on behalf of the deceased husband's estate and was now representing her in a claim against that same estate, a conflict clearly existed; the only question was whether it violated Canon 6, and the Committee concluded that it did.

Currency note

This opinion was issued in October 1968, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the Canons of Professional Ethics, governing representation of conflicting interests. The questions of representing interests adverse to a current or former client are now treated under RPC 1.7 and RPC 1.9. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: If a spouse can legally sue a deceased spouse's estate, why is there an ethics problem?

A: The Committee held that Long v. Landy removed the substantive bar, but the attorney's own conflict remained: he had represented the estate and was now pressing a claim against it.

Q: What made the representation conflicting?

A: The attorney had represented the widow on behalf of the husband's estate and then represented her in a claim against that same estate, which the Committee said clearly created a conflict in violation of Canon 6.

Background and rules framework

The opinion separates the substantive tort question (resolved by Long v. Landy in favor of allowing the claim against the estate) from the ethical question of an attorney pressing a claim against an estate he had represented. The governing standard was Canon 6 on conflicting interests. In current New Jersey terms, the analysis falls under RPC 1.7 (concurrent conflicts) and RPC 1.9 (duties to former clients).

Citations and references

Cases:

• Long v. Landy, 35 N.J. 44 (1961): death of a spouse removes the bar to suing the spouse's estate

Other authorities:

• Canons of Professional Ethics, Canon 6
• Supreme Court directive, 91 N.J.L.J. 81 (February 8, 1968): attorney may not represent both passenger and driver where the passenger has a claim against the driver

See also

No sibling opinions yet indexed.

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp135-1.html

Original opinion text

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

91 N.J.L.J. 673
October 17, 1968

OPINION 135

Conflict of Interest Suing Estate Previously Represented

Inquiry has been made as to whether a conflict of interests exists within the purview of the Canons of Professional Ethics, Canon 6, under the following circumstances.

A husband and wife, living together and employed by the same employer, were involved in an auto accident on their way to work. The husband who was driving was killed, the wife injured. The wife consulted an attorney who advised her of her rights and eventually procured her appointment as administratrix, ad prosequendum and general administratrix of the estate of her deceased husband. On her behalf he instituted suit against the driver and the owner of the other vehicle seeking damages both for the death of her husband and for his pain and suffering. Prior to trial this action was settled.

Thereafter the attorney instituted a separate action on behalf of the wife for her personal injuries against the driver and owner of the other vehicle. A third-party complaint was filed by the attorney for the driver and owner of the other vehicle against the husband's estate. The husband's insurance carrier retained an attorney to defend the third-party complaint. The wife's attorney then filed a claim against the third-party defendant (the husband's estate) and the attorney for the insurance carrier answered this claim also.

We are also informed that the attorney for the wife performed some modest services in settling the husband's estate and that the insurance coverage of either the husband or the owner of the other vehicle is ample to pay any sustainable verdict.

Two pronouncements by our Supreme Court bear on the determination of this question. One is the decision in Long v. Landy, 35 N.J. 44 (1961), in which the Court held that the rule preventing one spouse from suing the other spouse for damages arising from a negligent tort does not bar a suit against the estate of a deceased spouse. The other is the directive appearing in 91 N.J.L.J. 81 (February 8, 1968), in which the Court advised the bar that attorneys may not represent both the passenger and the driver of an automobile where the passenger has a cause of action against the driver.

The rationale of Long v. Landy, as stated at page 53, is that the danger of fraud and collusion between spouses is no longer present when one spouse has died. It does not follow, however, that the death of a spouse automatically eliminates any conflicting representation on the part of the attorney. He has represented the widow on behalf of the estate of the deceased husband and is now representing her in a claim against the same estate. Clearly a conflict exists, the only question being whether or not it violates Canon 6. We think it does.