MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2023-02
ETHICAL PROPRIETY OF PLAINTIFFS’ ATTORNEYS SEEKING SIGNED RELEASES FROM NONCLIENT POTENTIAL FUTURE WRONGFUL DEATH BENEFICIARIES
QUESTION PRESENTED
May an attorney, representing a plaintiff in connection with a personal injury claim, ethically seek executed releases from non-client potential future wrongful death beneficiaries? BRIEF CONCLUSION It is the majority opinion of this Committee that an attorney may ethically act as their client’s agent in seeking executed releases from potential future wrongful death beneficiaries; however attorneys should be cautious in pursuing such releases and should avoid acting in a representative capacity or providing legal advice to such potential beneficiaries while doing so.
STATEMENT OF FACTS
The current request is related to a hypothetical personal injury claim1 . The hypothetical claim alleges that significant injuries were caused by the negligence of Defendant(s), and that such injuries are likely to cause the premature death of the Plaintiff. The Plaintiff has pursued a personal injury claim as an individual and is currently the sole eligible claimant. If the Plaintiff ultimately passes prematurely due to the injuries, their death would potentially give rise to a statutory wrongful death claim pursuant to Md. Code Ann., Cts. & Jud. Proc. § 3-901.2 In the event Plaintiff were to pass prematurely, thereby giving rise to a wrongful death claim, there are currently multiple non-party individuals who would qualify as statutory wrongful beneficiaries under Md. Code Ann., Cts. & Jud. Proc. § 3-901. However, the Plaintiff’s potential premature death has not yet occurred, and therefore any such beneficiaries are merely potential future beneficiaries, who do not yet possess standing or a ripe claim (hereinafter “Potential WD Beneficiaries”). Plaintiff’s counsel represents only the Plaintiff individually and does not represent any of the Potential WD Beneficiaries. Other than the Plaintiff, the only parties to the claim are the alleged tortfeasor(s), Defendant(s).
At some point during settlement discussions, the Defendant(s)’ insurer, through defense counsel, requested that the Plaintiff’s attorney obtain executed releases not only from the Plaintiff, but also from the non-party Potential WD Beneficiaries. According to the hypothetical, no consideration has been offered to the Potential WD Beneficiaries as part of the settlement and no additional consideration has been offered to Plaintiff in exchange for seeking/obtaining such releases. It is not clear at what point the question of obtaining the releases from the non-parties was raised, nor whether any settlement offers were preconditioned on obtaining such releases. Plaintiff’s counsel has sought an opinion regarding the ethics of seeking such releases from these non-client Potential WD Beneficiaries.
ANALYSIS/DISCUSSION
BRIEF BACKGROUND HISTORY ON WRONGFUL DEATH CLAIMS IN MARYLAND
In Mummert v. Alizadeh, 435 Md. 207 (2013), the Supreme Court of Maryland3 provided a brief history of Maryland’s wrongful death statute:
“We discussed previously the origins of our wrongful death statute in Walker v. Essex[,]
‘The common law not only denied a tort recovery for injury once the tort victim had died it also refused to recognize any new and independent cause of action in the victim’s dependents or heirs for their own loss at his death.’ In response to this harsh rule, the English legislature created a cause of action for wrongful death by enacting the Fatal Accidents Act of 1846, also known as Lord Campbell’s Act. Every American state subsequently adopted its own wrongful death statute.
In 1852, Maryland adopted a statute strongly resembling Lord Campbell’s Act.’
The portion of the 1852 enactment most pertinent to this case contained language taken directly from the Lord Campbell’s Act of England:
‘[W]hensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued,) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured….’
With minor changes not relevant for present purposes, the above-quoted language was codified eventually at Article 67 of the Maryland Code. Aside from some irrelevant additions and other changes, that language remained virtually unchanged until the 1970s.
The Legislature changed the statute in 1973 when, as part of what has become a longstanding Code revision effort, the statute was moved from Article 67 to Title 3, Subtitle 9, of the Courts and Judicial Proceedings Article. Under the 1973 iteration, ‘[a]n action may be maintained against a person whose wrongful act causes the death of another,’ and ‘wrongful act’ was defined as ‘an act, neglect, or default … which would have entitled the party injured to maintain an action and recover damages if death had not ensued.’ That language remains to this day.
The 1973 changes to the statute were made for style and organization purposes, not to alter the meaning of the statute, as is the usual goal of Code revision.
The statute contains also a time limitation provision on bringing a wrongful death claim, which the Legislature enlarged on three subsequent occasions. The original limitation in the 1852 enactment was twelve months, but it was extended later to eighteen months, then to two years, and eventually to three years to bring it ‘in uniformity with that of other negligence actions.’ The relevant limitations provision for present purposes now reads, in pertinent part, ‘an action under this subtitle shall be filed within three years after the death of the injured person.’”
Mummert v. Alizadeh, 435 Md. 207, 214–16, 77 A.3d 1049, 1053–54 (2013) (citations omitted.)
Mummert went on to hold that while wrongful death claims are in some sense derivative of negligence claims by a victim, wrongful death claims are nonetheless independent statutory causes of action.4
DISCUSSION
This request presents complex questions from an ethics perspective due to the related-but-distinct nature of wrongful death claims under Md. Code Ann., Cts. & Jud. Proc. § 3-901, and the circumstances under which such claims arise. For the purposes of this opinion, we assume that Plaintiff’s counsel would be contacting Potential WD Beneficiaries in connection with executing a release for no consideration, in order to obtain a settlement on behalf of the Plaintiff individually.5
The requesting attorney has raised concerns about (1) the potential for conflicts of interest between her client and any non-client Potential WD Beneficiaries, from whom she might be asked to seek releases, and (2) the ethical propriety of the timing of the request/demand that Plaintiff’s counsel obtain releases from non-client Potential WD Beneficiaries as a part of settlement of a negligence claim brought by an individual plaintiff.
POTENTIAL CONFLICTS OF INTEREST
We turn first to the concerns raised regarding potential conflicts of interest that could develop between the attorney’s existing Plaintiff-client and Potential WD Beneficiaries if/when the attorney seeks to obtain executed releases from Potential WD Beneficiaries.6
Potential WD Beneficiaries, as a class, are necessarily close family relations of a still-living Plaintiff in this context. Given that close familial relationship, it would be understandable for Potential WD Beneficiaries to assume that the Plaintiff’s attorney was also acting as their attorney if and when Plaintiff’s counsel contacted the Potential WD Beneficiaries.
It is easy to envision a scenario where the best interests of the Plaintiff-client are not identical to those of the Potential WD Beneficiaries. In the hypothetical example, no consideration is being offered to Potential WD Beneficiaries in exchange for the releases requested by the Defendant(s). Although Potential WD Beneficiaries could certainly choose to forgo the opportunity to obtain a future recovery of their own in order to benefit the still-living Plaintiff, it would be difficult to advise them that doing so is in their personal best interests. It is similarly easy to imagine conflicts between members of the class of Potential WD Beneficiaries themselves, including but not limited to (a) instances of estrangement between a Plaintiff and a Potential WD Beneficiary, (b) instances where a Plaintiff’s surviving parents do not approve of the Plaintiff’s spouse, (c) instances where second marriages have led to discord between a Plaintiff’s current spouse and a Plaintiff’s children from a prior marriage, and/or (d) where Potential WD Beneficiaries are minors in a variety of scenarios.
We also note that a Plaintiff’s attorney seeking releases in this context may have a conflict directly with the Potential WD Beneficiaries, in light of the financial interest the attorney may have in ratifying a settlement when working on a contingency fee basis.
Given the potential for conflicts of interest to develop between (a) the Plaintiff and Potential WD beneficiaries, (b) Plaintiff’s counsel and Potential WD Beneficiaries, and/or (c) amongst and between members of the class of Potential WD Beneficiaries, this Committee recommends avoiding entering into a representative relationship or providing legal advice to Potential WD Beneficiaries while seeking the execution of releases from such beneficiaries in this context.
ETHICALLY SEEKING THE REQUESTED RELEASES
Despite the recommendation that Plaintiff’s attorneys avoid providing legal advice to Potential WD Beneficiaries, we believe it is possible for the Plaintiff’s attorney to ethically act as the Plaintiff’s agent in requesting the execution of releases without providing legal advice to, or entering into a representative relationship with, any Potential WD Beneficiary. By refusing to enter into such a relationship and acting only as an agent for the Plaintiff, the attorney could avoid any potential conflict issues. The Committee believes that seeking releases in this manner could be ethically achieved by providing a copy of the proposed release to the Potential WD Beneficiaries enclosed with a cover letter explaining (a) that the attorney is acting as Plaintiff’s agent and does not represent the Potential WD Beneficiaries, (b) that the Potential WD Beneficiaries have the right to seek the advice of independent counsel, and (c) that by executing the release, the Potential WD Beneficiaries would forfeit any rights that they may have in the future to pursue a wrongful death claim arising out of the underlying incident.7
Although ethically workable, the requesting attorney has expressed anticipated difficulty obtaining executed releases in timely manner in this fashion, and anticipates reticence from Potential WD Beneficiaries if the language in the cover letter is sufficiently clear to ensure that there is no confusion regarding the lack of a representative relationship between the attorney and Potential WD Beneficiaries. The committee is sympathetic to the requesting attorney’s concerns regarding the practicality of this method, but nonetheless believes this to be the safest approach from an ethics perspective if a Plaintiff’s attorney is going to seek releases from non-client Potential WD Beneficiaries.
TIMING OF DEMAND FOR RELEASES
As noted above in Footnote 1, the requesting attorney described multiple instances in which they had been asked to obtain executed releases from Potential WD Beneficiaries, at a variety of different points during litigation and settlement negotiations, which fall into one of two broad categories: (1) prior to reaching an agreed upon settlement figure, as a material term that is considered during and as part of settlement discussions, and (2) after reaching an agreed upon settlement figure, either at the close of mediation or sometimes as a term included in a proposed draft release.
It is the majority opinion of this Committee that the timing of such a request does not present an ethical question, but rather a legal and strategic one. There is no ethical agreement that parties be willing to settle in every matter.
In the former situation, where a demand for releases executed by the Potential WD Beneficiaries is raised prior to, as a part of, and/or as a condition of any settlement negotiations, the question is not an ethical one, but rather whether such releases can feasibly and timely be obtained and if so, what value the parties ascribe to including that term as a part of settlement.
Similarly, in the latter situation, where the demand for releases executed by the Potential WD Beneficiaries is raised after reaching an agreed upon settlement figure, the question is not an ethical one, but rather a legal one as to whether an enforceable settlement exists and whether the demand for executed releases from the Potential WD Beneficiaries was a part of such settlement.
CONCLUSION
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
• Rules cited:
Md. Rule 19-301.7
Md. Rule 19-301.8
• Cases cited:
Mummert v. Alizadeh, 435 Md. 207 (2013)
• Ethics Dockets cited:
MSBA Ethics Docket No. 2021-05
• Other authority cited
Md. Code Ann., Cts. & Jud. Proc. § 3-901
1 These hypothetical facts are based on several “real world” experiences described by the original requestor, which were consolidated into a single hypothetical.
2 The primary beneficiaries in such a wrongful death action would be the surviving spouse, parent(s), or child(ren) of the victim. In the event that no primary beneficiaries survive the victim, the statute provides for a potential class of secondary beneficiaries in certain circumstances.
3 Formerly known as the Court of Appeals of Maryland.
4 “It is not wholly incorrect to state that a wrongful death claim is derivative of the decedent’s claim in some sense. The two actions stem from the same underlying conduct, which must have resulted in the decedent having a viable claim when she was injured. That connection, however, does not compel the conclusion that all defenses applicable to the decedent’s claim prior to her death would preclude necessarily maintenance of a wrongful death claim after the decedent’s death. That the Legislature’s purpose was to create a new and independent cause of action when it passed the wrongful death statute suggests that it did not intend for a statute of limitations defense against the decedent’s claim to bar consequently a subsequent wrongful death claim.” Mummert v. Alizadeh, 435 Md. 207, 222, 77 A.3d 1049, 1058 (2013)
5 We believe the situation addressed in this opinion, where an attorney is seeking releases from non-clients after having negotiated a recovery on behalf of an individual plaintiff, is distinct from undertaking the joint representation of multiple parties, potentially including an individual victim and Potential WD Beneficiaries, at the outset of representation.
6 Maryland Rules 19-301.7 and 19-301.8 define “conflict of interest” and identify some situations that present such conflicts.
7 Members of the Committee note that a Plaintiff may want to consider compensating a Potential WD Beneficiary in exchange for the execution of a release. To the extent that Plaintiff’s counsel participated in any such discussions, it all the more important that said attorney adequately disclose the lack of any attorney-client relationship with any Potential WD Beneficiary.