Conflict? It’s Tricky.

Conflicts can be tricky to navigate.  Heck, sometimes it’s tricky enough just to figure out which rule applies.

No conflict under Rule 1.9(a)?  That’s great, but don’t forget to analyze whether application of Rule 1.6 through Rule 1.9(c) creates a conflict under Rule 1.7(a) that may or may not be waived pursuant to 1.7(b).

And those are the easy ones.  Lawyers moving between firms? Whoa! To screen or not to screen? Do we even allow screening?  It can’t be a conflict, I don’t even remember the case! Right, Mike?  Mike…..right?

Talk about raising hell. You get the point.

Well, here’s one that makes even my head spin. The Utah Supreme Court recently faced this question:

  • “This case is about whether a person acting in the capacity of sole heir and personal representative of an estate can sue him or herself as an individual for damages under the wrongful death and survival action statutes. Barbara Bagley, in her capacity as sole heir and personal representative of her deceased husband‘s estate, argues that these statutes permit her to sue herself as an individual for negligently causing her husband‘s death.”

The answer, “yes.” The opinion is HERE.

Now, Utah’s wrongful death statute is well beyond the scope of this blog.  What makes my head spin about the case is the ethics implications for the lawyers involved.  Here’s what we have:

  • In 2011, Barbara Bagley was driving a vehicle in which her husband was a passenger. There was an accident. Her husband died of his injuries.
  • Ms. Bagley was the sole heir and personal representative of her husband’s estate.
  • Ms. Bagley had an auto insurance policy.
  • To compel the insurer to pay her, she sued herself.
  • She alleged that she negligently caused her husband’s death, depriving his sole heir  (herself) of his “love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.”
  • She also alleged that she caused her husband “to experience pain and suffering prior to his death, which entitles [his] estate to damages such as funeral expenses and medical bills.”

Against that backdrop, here’s where my head began to spin.

After Ms. Bagley sued herself (no idea if she tried to dodge service) she filed a 12(b)(6) motion to dismiss.  That’s correct: Ms. Bagley argued that she had failed to state a claim against herself.  The thrust of her argument: Utah’s wrongful death and survival statutes don’t allow her to sue herself.

The trial court agreed and dismissed her complaint.

Presumably unhappy with the result she’d achieved as a defendant, Plaintiff Bagley appealed.  Defendant Bagley did not go away lightly. On appeal, she raised the same arguments she had below and, in addition, argued that allowing her to sue herself would contravene Utah’s “absurdity doctrine.”

That’s right: she argued that it would be absurd to let her do what she’d done. Not to be outdone, Plaintiff Bagley argued that Defendant Bagley hadn’t preserved the absurdity doctrine argument below.  My guess is that she’d remember.

An intermediate level appellate court concluded that the trial court had erred in dismissing the complaint.  The Utah Supreme Court agreed, affirming the decision of the mid-level court.

Now, at least on appeal, Plaintiff Bagley and Defendant Bagley had separate counsel.  I assume they (she?) also had separate counsel below. If so, I can’t wrap my head around the potential violations.

Potential conflicts aside, a lawyer must not disclose information relating to the representation absent client consent.  How does this work when client is also the opposing party? Opposing party can consent to the disclosure of client’s otherwise confidential information?

How did (and will) Ms. Bagley’s attorneys comply with the duty to communicate with her without, at the same time, violating the rule against communicating with a represented person on the subject of the representation?

I’m not arguing or even suggesting that the Utah Supreme Court reached the wrong conclusion under Utah state law.  And I expect that everyone involved, including Ms. Bagley, knew exactly what was going on and consented to it.  Still, I’m simply befuddled by the ethics issues that must have arisen.

And what will happen now?  Can she reject an offer that she authorizes her [other] attorneys to make?  Can her lawyers compel her to respond to discovery requests?

  • “Our client insists there is more to produce.  And she’s in a position to know.”

It’s tricky.  At least to me.






3 thoughts on “Conflict? It’s Tricky.

  1. Oh. Once again the legal system has proven the truth is stupider than fiction. Credit to Mike Kennedy for just being able to articulate the facts. My gag reflex kept distracting my concentration.

    One approach to this happenstance is equity. Equity follows the law. The law is really just evidence of a consensus of moral and ethical thought which constantly needs to refer to its metaphysical roots. Have the courts forgotten “ex turpi causa non oritur actio”? A plaintiff can’t benefit from his/her wrongdoing. Any suit against herself would direct an award towards her husband’s estate which would expressly exclude her.

    It’s good for Mike to bring up the topic of “waiveable conflicts”. They’re not clear and it’s good to examine them.


  2. Wow! I can see it now – people with good car insurance “negligently” killing their spouses in an accident, and then suing themselves to increase the value of the estate…aside from the ethical and moral issues, what will be the impact on insurance rates? Or will insurance contracts be amended so that they don’t cover this? Or will legislative action be taken?


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