Could counsel who brought an estate’s wrongful death action represent an heir in contested distribution?

Short answer Opinion 96-01 said no where another heir contested distribution. Counsel’s work for all heirs in the wrongful death action could yield confidences and create competing interests over the proceeds.
Bar
VTBAR
Issued
1996

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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.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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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 Treat this page as historical context, not current guidance.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

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