For purposes of this article, the crucial point is that the wife, husband, parents, and children of the deceased person are the “primary beneficiaries” in any wrongful death action, and all must be joined in a single action.1
Thus, in a
single case the attorney may find himself representing multiple wrongful death beneficiaries, each entitled to compensa- tion as prescribed by statute. Depending on the relationship and circumstances of the particular beneficiary, this com- pensation may be limited to solatium damages,2
for pecuniary losses. Of the possible outcomes for a wrong-
ful death action, two involve recovery by the beneficiaries, i.e., recovery by verdict at trial or pretrial settlement. Recovery by verdict at trial is relatively straight forward and presents less danger of conflict of interest for the attorney. If the attorney for the wrongful death ben- eficiaries puts on her best case for each of her clients, then the jury gets to decide what compensatory award to make to each. The economic award is whatever it is, and if the solatium award exceeds the statutory cap on such damages, the court reduces the verdict to reflect the proportionate share of the capped amount assignable to each wrongful death beneficiary. The knottier problem arises if an
opportunity for pretrial settlement arises. How does the attorney deal with the prospect of a pretrial settlement on behalf of multiple wrongful death beneficiaries? Obviously, settlement
1
Bob Michael’s excellent article in this edi- tion of The Trial Reporter deals at length will issues specific to “use plaintiffs’ and “secondary beneficiaries” so we do not deal with those issues here. We also do not deal in detail with issues arising from the coupling of Survival actions prosecuted on behalf of the decedent’s estate by a personal representative.
2
Those for “mental anguish, emotional pain and suffering, loss of society, companion- ship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education.” Md. Cts. and Jud. Proc. Code Annot. § 3-904(d).
Fall 2008
who becomes involved in the issue of division of settlement proceeds among his clients? We believe that, based on the Maryland Rules of Professional Responsibility and Maryland case law, the answer to this last question is an emphatic “yes.”
which in Maryland are set forth in the Maryland Rules of Professional Conduct (“MRPC”). All attorneys are presum- ably aware that violations of the MRPC may give rise to disciplinary proceedings that result in disciplinary sanctions. Not all attorneys, however, are aware that in
represents a sum certain to be divided among the wrongful death beneficia- ries. Who decides whether a settlement amount is acceptable? How is the settle- ment amount divided? Can the attorney decide, or even offer suggestions as to who gets what? Isn’t there an inher- ent conflict of interest for any attorney
B. Beware of the Maryland Rules of Professional Con- duct When Representing Multiple Clients in Wrongful Death Cases
The practice of law is a profession regu- lated by disciplinary and ethical rules,
or may include compensation
Isn’t there an inherent conflict of interest for any attorney who becomes involved in the issue of division of settlement proceeds among his clients?
Pre Settlement Funding • Law Firm Financial Products
John Friedson President
P.O. Box 1339
Rockville, Maryland 20849 (301) 984-0600 Fax: (301) 984-0719
email:
john@creativefinancingsolutions.com www.creativefinancingsolutions.com
Trial Reporter
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