Avoiding Conflicts (Continued from page 37)
find the same way under even slightly different scenarios. Moreover, as the Court of Special Appeals noted in Ash- craft & Gerel v. Shaw, 126 Md.App. 325, 728 A.2d 798 (1999), clients “might have a cause of action against [the attorneys] for malpractice arising from a conflict of interest relating to the settlement” of underlying personal injury cases in which the attorneys represented mul- tiple plaintiffs. Thus, prudence dictates that the attorney representing multiple wrongful death beneficiaries take clear and unequivocal steps early in the repre- sentation to minimize the possibility that the potential conflict will become actual. We handle this issue by procuring, at or near the institution of representation, the clients’ written informed consent to the multiple representation and spe- cific instruction as to division of any potential settlement proceeds among the clients. As a practical matter, hu- man nature dictates that it is easier to procure independent agreement as to apportionment among multiple clients at the inception of representation, before any concrete offer of settlement has been made. Once actual dollars are on the table, the old adage that “money changes everything” all too frequently will come into play, and agreement among the clients frequently becomes much more difficult. If agreement among the clients cannot be reached at an early stage, then counsel should be on notice that, even with agreement to later submit the issue to the court or an arbitrator, the “end game” of the representation could be- come quite protracted and complicated. We suggest the following framework for use in communicating with the clients in multiple wrongful death beneficiary cases: 1. Clearly identify the clients and the basis for their claim of wrongful death beneficiary and/or personal representative status;
2. Explain the causes of action that arise from the alleged negligent death, i.e., survival and wrongful
Fall 2008
death actions; 3.
Identify the elements of damage and the basis for claims of damages for each client and both causes of ac- tion;
4. Explain the potential for a conflict of interest that would arise if the attorney were to participate in any decision as to a split of settlement proceeds;
5. Suggest alternatives available to avoid the development of an actual conflict of interest; a. The clients can determine among themselves, in advance, how any settlement proceeds will be di- vided.
b. If such an advance agreement cannot be reached, then the clients should agree that one of them will be elected to make any decision regarding whether to accept any settlement offer that may be procured, with the ex- press additional agreement that the ultimate issue of apportion- ment will be later submitted to the court or a private arbitrator for decision. It should be made absolutely clear that in the event that the issue of apportionment is placed before the court or an arbitrator that each wrongful death beneficiary will need to procure independent counsel and that the current attorneys will of- fer only fact testimony about the substantive issues of the underly- ing case and will offer no opinion as to the relative apportionment issue.
6. Whatever the decision of the clients, it should be transmitted to the at- torney, memorialized in writing by the attorney, then signed by each client.
Conclusion Because of the framework of the law
requiring a single action be brought on behalf of all statutorily recognized wrongful death beneficiaries in any case involving alleged negligent death, attor-
Trial Reporter
neys often represent multiple wrongful death beneficiaries in such actions. 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. That potential conflict of interest be- comes actual at the point that a pretrial settlement is consummated, unless the attorney has preemptively addressed the situation by procuring the written informed consent of the clients to the multiple representation and the clients’ independent instruction as to how any such settlement is to be apportioned. Given that counsel can anticipate that apportionment of settlement proceeds among multiple wrongful death ben- eficiaries is likely to become an issue and could cause a potential conflict to become actual, it is prudent that counsel address the situation early and unequivocally. n
About the Author
Kathleen Howard Meredith is a princi- pal in the law firm of Iliff & Meredith, P.C. She is past Chair of the Medicine and Law Committee of the American Bar Association, past Chair of the Liti- gation Section Council of the Maryland State Bar Association, current Chair of the Membership Committee of the Maryland State Bar Association and a Fell of the American College of Trial Lawyers.
David J. Wildberger is a shareholder in the firm of Iliff & Meredith, P.C. in Pasadena, Maryland. He received his J.D. from the University of Maryland School of Law. Mr. Wildberger serves on the MTLA Board of Governors, and is the Chairperson of the Public Awareness and Outreach Committee, as well as a member of several other MTLA com- mittees and sections. He is a member of the Maryland, District of Columbia and Federal Bars. His primary area of prac- tice is the representation of individuals and families harmed by acts of medical negligence.
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