Can a lawyer who handled an estate's administration then sue that estate, with the administrator he represented as the nominal defendant, to reach the decedent's insurance?

Plain-English summary

The inquirer was consulted by a woman whose husband died without a will; during the consultation it emerged that she had been injured in an accident while a passenger in a car driven by her late husband. The inquirer's firm then handled the administration of the estate, with the woman's brother-in-law appointed administrator, and the estate was wound up. The firm asked whether it could now sue the estate, with the administrator as nominal defendant, to reach available insurance coverage.

The Committee stressed how speculative the inquiry was, turning on many possible future events. On the surface, the firm had recently served as counsel to the fiduciary and now proposed to sue him in his representative capacity. But the Committee reasoned that, assuming adequate insurance limits and no real likelihood of a coverage dispute, the conflict might be more apparent than real. It noted, however, that if the carrier asserted a defense such as late notice of accident, the inquirer might become a witness in a declaratory-judgment action, raising DR 5-101, and that the administrator might need advice if a judgment could exceed the policy limits, unless the only estate beneficiary was the plaintiff.

The Committee said that if the inquirer satisfied himself there was no real possibility of such a conflict, allowing for his duty to withdraw should he become a witness under DR 5-102, he was not strictly precluded from accepting the employment, and the administrator might not be one "of adverse interests" under DR 7-104. On balance, though, it suggested the very sensibilities that prompted the inquiry should lead the lawyer to refer the matter to another attorney, and being unable to assess the course of future events, it was unwilling to hold that the lawyer could accept the employment with propriety.

Currency note

This opinion was issued in 1976, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. Duties to former clients are now analyzed under RPC 1.9, and the lawyer-as-witness limitation, formerly DR 5-101 and DR 5-102, under RPC 3.7. Treat this page as historical context, not current guidance.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 a lawyer sue an estate he previously administered?

A: Under this opinion, the Committee declined to approve it on these facts, though it did not impose an absolute bar; it pointed to the lawyer-as-witness risk and suggested referring the matter out.

Q: Why might the conflict be "more apparent than real"?

A: Because, assuming adequate insurance with no real coverage dispute, the recovery would come from the carrier rather than the former-client administrator personally.

Q: What would turn the apparent conflict into a real one?

A: A coverage defense such as late notice could make the inquirer a witness in a declaratory-judgment action (DR 5-101/5-102), or a judgment exceeding policy limits could leave the administrator needing independent advice.

Background and rules framework

The opinion weighed the duty to a former client against the lawyer-as-witness rules of DR 5-101 and DR 5-102 and the adverse-interest concern of DR 7-104. In current New Jersey terms, duties to former clients are governed by RPC 1.9 and the witness limitation by RPC 3.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101 and DR 5-102 (lawyer as witness), as in effect 1976; now MR 3.7 / NJ RPC 3.7
• DR 7-104 (dealing with a party of adverse interests), as in effect 1976
• Duty to former clients now under MR 1.9 / NJ RPC 1.9

See also

• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 391: Foreclosure Action Against a Former Client
• NJ ACPE Op. 450: Representing an Agent Against a Former Client Management Corporation

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp358-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

99 N.J.L.J. 1129, December 23, 1976

OPINION 358

Conflict of Interest
Suing Administrator Previously Represented

The inquirer was consulted by a woman whose husband died without a will. During the consultation, it was learned that the woman had been injured in an accident while she was a passenger in a car driven by her late husband.

The inquirer's firm attended to the administration of the estate, with the woman's brother-in-law appointed as administrator, and "the estate was wound up." The question presented is whether the inquirer's firm can institute suit against the estate of the late husband with the administrator as the nominal defendant. We are informed that there is available insurance coverage.

The Committee finds it extremely difficult to furnish definitive answers in cases where the inquiry leaves open to speculation so many alternate possibilities as to future events. Of course, this is often the very circumstance which prompts the inquiry and perhaps provides the answer.

On the surface it appears that the inquirer recently served as counsel to the fiduciary and now proposes to bring suit against him in his representative capacity. However assuming the existence of applicable insurance coverage with adequate limits and further assuming that there is no real likelihood of a dispute as to coverage because of claimed breach of policy conditions or the like, the "conflict of interest" may be more apparent than real. However, should the carrier, for example, assert late notice of accident as a basis for avoiding coverage, the inquirer might become a witness in a declaratory judgment case, raising the issue of DR 5-101.

As a practical matter, we assume that the inquirer would confer with the administrator to explain to him the nature of the proceeding and to advise him to forward all suit papers to the carrier. If there is a possibility that any judgment might exceed the limits of the insurance policy, the administrator may well require legal advice as to how to deal with the carrier, unless, of course, the only beneficiary of the estate is the plaintiff's wife.

We cannot know whether any of the myriad of possible problems will actually arise and of course lawyers constantly must concern themselves with the potential for future real conflicts. If the inquirer satisfies himself that there is no real possibility of such potential conflict, making allowance for the duty to withdraw should he become a witness (DR. 5-102), he is not precluded from accepting employment. It may be that the administrator, under these special circumstances, is not "one of adverse interests" within the meaning of DR 7-104.

On balance, however, we suggest that the very sensibilities which motivate the inquiry ought to lead the lawyer to the conclusion that he would be more comfortable if he referred the matter to another attorney. Since we are unable to assess with any degree of certainty the course of future events, we are unwilling to hold that the lawyer may accept the employment with propriety.