Now THIS Is A Conflict Of Interest…Or Is It?

alton_attorney_accidentally_sues_himself

Is it a conflict of interest for a lawyer to represent a client suing herself? Lawyers are all forbidden to bring adverse actions against their own clients; it is the conflict of all conflicts, a pure breach of loyalty. Does this mean, then, that even when a statute requires a plaintiff to sue herself as a defendant, it can’t be done without breaching the ethics rules?

The case is Bagley v, Bagley, and both Bagleys are the same Bagley.

State Farm Insurance Company handled Barbara Bagley’s car insurance. She was driving when her car flipped and killed her common law husband.  To compel State Farm to indemnify her, Bagley, in her dual capacities as sole heir and personal representative of the estate of her husband, was required to bring this suit against herself as the negligent driver. Bagley as plaintiff and as her husband’s heir brought a cause of action pursuant to Utah Code section 78B-3-106, Utah‘s wrongful death statute, alleging that the defendant—her— negligently caused her, that is, the plaintiff’s husband’s death, thereby depriving his sole heir –the plaintiff, but also the defendant—of his “love, companionship, society, comfort, care, protection, financial support, pleasure, and affection.”  She also brought a second cause of action pursuant to Utah Code section 78B-3-107, Utah‘s survival action statute, alleging that the defendant—her again— negligently caused the deceased to experience pain and suffering prior to his death, entitling Bagley’s late husband’s estate to other damages.

Upon appeal, the Utah Supreme Court held that both suits were permissible, writing…

…we hold that the court of appeals did not err when it concluded that the wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent‘s death or injury. The plain language of both statutes permits such a lawsuit. Further, the literal terms of the statutes do not lead to an absurd result that would require us to modify the statutory text. And absent a statutory gap, we will not venture beyond the plain language of the statutes to rewrite them based upon public policy.

From a conflicts of interest perspective this is mind-boggling. I love,love, love the case, however, since a better example of the Ethics Incompleteness Principle would be hard to find. Legal ethics rules insist that a lawyer can never, never ethically sue a client while the lawyer is representing that client.

Except in this case!

Here was how the court raised and dismissed the conflict issue…

The [Utah Defense Lawyers] Association submitted novel arguments about the impact this case could have on our adversarial system and our Rules of Professional Conduct. The Association argues, inter alia, that this lawsuit distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel‘s representation of the client as the defendant is directly adverse to defense counsel‘s representation of that same person who is also the plaintiff.” This concurrent conflict, the Association further argues, strains an attorney‘s ability to communicate with his or her client, because “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” (quoting UTAH R. PROF‘L CONDUCT 4.2(a)). Conversely, communications in the other direction, from client to attorney, are also hampered, according to the Association, because the client knows that anything she reveals will be used against her. Relatedly, the Association raises concerns about jury confusion and the ability of an attorney to cross-examine his own client.

These arguments are not without merit but they must ultimately fail. This suit does not create a concurrent conflict. Plaintiffs and Defendant act in different legal roles. Any concern that Ms. Bagley will withhold information from defense counsel that is adverse to the estate‘s recovery is tempered by Ms. Bagley‘s requirement to cooperate with her insurer under their insurance agreement and the district court‘s inherent powers to manage discovery and ensure that defense counsel obtains relevant, probative evidence necessary to defend against Plaintiffs‘ causes of action. Similarly, concerns about jury confusion and cross-examination at trial are alleviated by the district court‘s ability to oversee the prosecution of this lawsuit in a manner that will mitigate these issues. Though this lawsuit raises novel issues regarding the attorney-client relationship and the prosecution of a lawsuit, these issues are manageable and do not create an overwhelming absurdity that requires us to rely on our absurdity doctrine to reform the wrongful death and survival action statutes.

In other words, “We’re making an exception.”

______________________

Pointer: Professional Responsibility Blog

Source: Legal Profession Blog

6 Comments

Filed under Ethics Alarms Award Nominee, Family, Law & Law Enforcement

6 responses to “Now THIS Is A Conflict Of Interest…Or Is It?

  1. So she’s having to use a trick to get an insurance company to pay up? Isn’t this just another species in the same genus as that aunt that had to sue her nephew to get her insurance to pay up?

    • It is. But at least suing yourself involves consent, and I think she’ll get over the betrayal.

    • Alex

      It was my first thought too. Since the reasons for that suit were never revealed (and I strongly suspect it was a requirement for her health insurance to pay), I wouldn’t group them together yet, or we may be forced to conclude that Bagley is schizophrenic (after all we concluded the aunt was a fairy tale with, right?)

  2. Wayne

    I wonder if this couple ever petitioned the court to have their common law marriage recognized as marriage per se? If they didn’t, seems like a long shot that the court would allow this woman to sue herself claiming that she had been deprived of the relationship of her “husband”.

  3. Pennagain

    I can’t believe I followed that to a conclusion that made sense.

    On the other hand, I am a fan of absurdity, and the concept of an Absurdity Doctrine applied in other areas (business, religion, bus schedules, haute cuisine ….) quite tickles my fancy.

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