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DeBolt v. Parker12/14/1988
This opinion considers the propriety of counsel fee allowances in circumstances governed by our Rule of Professional Conduct ("RPC") 1.8(i). That rule permits spouses to represent "directly adverse" consenting interests after "consultation regarding the relationship." The opinion points to the risks involved in undertaking that representation, risks which may result in the disallowance of all fees. It suggests that threshold requirements of full disclosure and informed consent are not attainable. Nevertheless, despite somewhat less than adequate proofs, it concludes that counsel here are entitled to fees. That conclusion is reached because (1) no interpretation of RPC 1.8(i) has been provided in any published opinion in this state, and (2) because our cases thus far cling to the belief that full disclosure-informed consent requirements can be satisfied.
Ann Bernice Segal and Robert I. Segal are lawyers, practicing in different firms. They are married. Ernest Crain and his wife, Mary Ella Crain, a passenger in a car driven by him, were killed in an automobile accident. They left two minor children surviving. Their deaths occurred when their automobile, stopped and waiting to make a left turn, was struck in the rear by a cement mixer, the driver of which admitted that he had been adjusting his mirror at the time of the accident. He said that Ernest Crain had failed to signal his intention to turn. The
accident also involved a third vehicle, the occupants of which were injured.
Both Ann and Robert Segal had represented members of the Crain family in the past and were asked to represent them in connection with claims arising from the accident. In accordance with the family's wishes, Ann Segal represented the Mary Ella Crain estate and Robert Segal the Ernest Crain estate. By stipulation, the facts concerning the representation were submitted to the Court by way of affidavits.
Ann Segal believed, as a matter of strategy, that liability was so clear and insurance coverage on the cement mixer so high that the Ernest Crain estate should not be sued notwithstanding the decedent's claimed failure to signal. Ernest Crain had only $30,000 of insurance coverage on his car; if he were found to have been comparatively negligent, his estate would have been responsible for part of any verdict recovered, thereby adversely affecting the total recovery of the estates, the assets of which belonged entirely to the children of the Crains. Ann Segal states that, after a full discussion of the possibility of suing the Ernest Crain estate, she was requested by Charlene DeBolt not to sue. Consequently, she named only the owner of the cement mixer and its driver in her complaint. Robert Segal filed a separate action on behalf of the Ernest Crain estate, naming the same defendants.
Shortly after Ann Segal instituted her suit, she became involved in a dispute with Charlene DeBolt, the Administratrix ad prosequendum, concerning the disposition of personal injury protection monies collected as a result of the accident. Another attorney, Mark Kancher, was therefore retained by the Administratrix and substituted as counsel in the accident suit over Ann Segal's opposition. In the course of the substitution proceedings, claims were made that Ann Segal and Robert Segal had conflicts of interest in connection with their representation of the decedents' estates. The court therefore advised the Segals that their right to fees in connection with their
representations was in question, that the questions involved would be answered in such furt
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