Could counsel who brought an estate’s wrongful death action represent an heir in contested distribution?
Apply this to your situation
This page answers the general question as of 1996. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer represented an estate and its co-administrators in a wrongful death action. A surviving spouse, who was not one of the co-administrators, retained separate counsel and contested how the proceeds would be distributed. The lawyer asked to represent the co-administrators personally as beneficiaries in the distribution action.
The committee answered no. In prosecuting the wrongful death claim, the lawyer had represented interests of all heirs and might have learned information about the surviving spouse. In the later distribution, heirs had competing interests in maximizing their shares. The opinion applied DR 4-101’s protection of confidences and followed its earlier Opinion 93-8.
The committee distinguished a hypothetical uncontested distribution on the basis of all heirs’ written or informal consent; those were not the facts before it.
Currency note
This opinion was issued in 1996 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Could the lawyer represent the co-administrators as heirs in the contested distribution?
A: No. The committee rejected that representation because another heir contested distribution.
Q: Did lack of direct contact with the other heir remove the conflict?
A: No. The opinion reasoned that the wrongful death work could still yield information about that heir and that heirs’ distribution interests differed.
Q: Did the committee decide an uncontested distribution?
A: No. It noted that its earlier opinion had left that situation open, and this request involved a contest.
Background and rules framework
The opinion applied former Code DR 4-101 and cited Vermont Opinion 93-8. It quoted 14 V.S.A. § 1492(c) on distribution of wrongful death proceeds.
Citations and references
Vermont Code of Professional Responsibility:
- DR 4-101
Statutes:
- 14 V.S.A. § 1492(c)
Other opinions cited:
- Vermont Opinion 93-8
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 96-01
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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