A Practical Approach to Avoiding Conflicts in the Representation of Multiple Statutory Beneficiaries in Wrongful Death Cases
by Kathleen Howard Meredith and David J. Wildberger
Introduction Personal injury attorneys encounter
a wide range of conflicts, and potential conflicts, in their practices. Wrongful death cases can present particularly treacherous ground in this regard because of the framework of the law requiring a single action be brought on behalf of all statutorily recognized wrongful death beneficiaries and the potential presence of a personal representative in any case involving alleged negligent death. Because of the inherently divergent
interests of the beneficiaries, a potential conflict of interest lurks for the attorney in every wrongful death case involving more than one statutory beneficiary. The consequences of attorneys’ fail-
ure to recognize and properly deal with potential conflicts, or the failure to recog- nize actual conflicts, can be severe. They may include: discharge by the clients, e.g., litigation over fees or, more significantly, legal malpractice (and related) litigation; litigation with third parties, e.g., lien- holders; and disciplinary proceedings. This article is not intended to address
all conflicts, or potential conflicts, that personal injury attorneys may encoun- ter in wrongful death cases, but instead focuses on the most common conflict, or potential conflict, that is encountered with some regularity.
A. The Framework of Mary- land’s Wrongful Death Statute and Maryland Rule 15-1001 Creates a Potential Conflict of Interest in Every Wrongful Death Case Involving More than One Beneficiary.
Maryland’s wrongful death statute is codified as Md. Cts. and Jud. Proc. Code Annot. § 3-904, which states in
Fall 2008 Trial Reporter 31
pertinent part: Action for Wrongful Death
(a) Primary beneficiaries – (1) Ex- cept as provided in paragraphs (2) and (3) of this subsection, an action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.
(b) Secondary beneficiaries – If there are no persons who qualify under subsection (a), an action shall be for the benefit of any per- son related to the deceased person by blood or marriage who was substantially dependent upon the deceased.
(c) Damages to be divided among beneficiaries – (1) In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury result- ing from the wrongful death. (2) Subject to § 11-108(d)(2) of this article, the amount recovered shall be divided among the beneficiaries in shares directed by the verdict.
(d) Damages – Death of spouse, minor child or parent, unmarried children who are not minors -- The damages awarded under subsection (c) of this section are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76