1998 the Court of Appeals reversed a prior line of Court of Special Appeals cases and held that the MRPC constitute important statements of public policy that have the force of law in Maryland in at least some contexts in civil litigation other than disciplinary proceedings. See, e.g., Post v. Bregman, 349 Md. 142, 707 A.2d 806 (1998); Son v. Margolius, 349 Md. 441, 709 A.2d 112 (1998).
C. The Rules of Professional Conduct that Are Most Often Implicated in Representing Multiple Plaintiffs in Wrong- ful Death Actions
Since the majority of civil cases are
resolved by settlement, rather than trial,3 a conflict almost inevitably arises during the course of every multiple beneficiary wrongful death case, even if there was no actual conflict at the beginning of the representation. MPRC 1.7 states the general rule re- garding conflicts of interest.
Rule 1.7. Conflict of Interest: General Rule.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal inter- est of the lawyer.
(b) Notwithstanding the existence of a conflict of interest under para-
3
See Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998).
34
graph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected cli- ent; (2) the representation is not pro- hibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
Rule 1.7(a)(2) underscores the propo-
sition that a potential conflict of interest exists in multiple wrongful death ben- eficiary representation. The attorney representing multiple beneficiaries owes the same duty to each of those clients to provide representation that is not “materially limited by the lawyer’s responsibilities to another client.” In the context of the substantive issues in the case, there is usually no question that the attorney can diligently and aggressively provide representation to multiple beneficiaries. In fact, it is nearly axiomatic that single representation of multiple wrongful death beneficiaries provides an economy that is in the best interests of all of the clients. This situ- ation changes, however, when and if the opportunity arises for a sum certain to be recovered in settlement on behalf of multiple wrongful death beneficiaries. At that point in time, any involvement by the attorney in determining the relative apportionment of the settlement proceeds among the clients creates a significant risk that the representation of one client will limit the attorney’s ability to advocate fully on behalf of the other clients and creates a potential violation of the Rule. It is true that Rule 1.7(b) creates an escape valve to section (a), but query whether it would ever be wise for an attorney to seek the written
Trial Reporter
“informed consent”4
of multiple clients
to the attorney having the authority to determine the relative split of settlement proceeds. The potential for conflicts among
attorneys’ multiple clients with regard to settling multiple client cases is so well established that Maryland Rule of Professional Conduct (“MRPC”) 1.8(g), specifically address this topic:
Rule 1.8. Conflict of Interest: Current Clients: Specific Rules
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients …unless each client gives informed consent, in a writing signed by the client or confirmed on the record before a tribunal. The lawyer’s dis- closure shall include the existence and nature of all the claims … involved and of the participation of each person in the settlement. Rule 1.8 is quite strong in its prohi-
bition of even basic “participation” in consummating an aggregate settlement on behalf of multiple clients without the clients’ written informed consent or confirmation in court. Taken together, Rules 1.7 and 1.8 indicate that in cases involving multiple wrongful death ben- eficiaries, attorneys should fully inform the clients of the existence of a potential conflict of interest and take affirmative steps to avoid the future development of that conflict. An example of a case in which there
was no conflict involving the substan- tive issues in the representing multiple wrongful death beneficiaries, but a conflict materialized toward the end of
(Continued on page 36) 4
MRPC 1.0(f) states that: “Informed con- sent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
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