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Harris v. Griffith

Court of Appeals of Washington, Division 1

March 5, 2018

STEFANIE HARRIS, individually and as Personal Representative of the Estate of STEVEN R. HARRIS (deceased); MARGARET HARRIS; and BRADLEY J. MOORE, in his capacity as Personal Representative of the ESTATE OF TAYLOR GRIFFITH, Respondents,

          Becker, J.

         An insurance defense lawyer who files a notice of appearance on behalf of an estate may not, after withdrawing from representation of the estate, later act on behalf of another client to remove the personal representative of the estate. The personal representative is a former client, and the lawyer must comply with Rule of Professional Conduct (RPC) 1.9, either by withdrawing from representation of the other client or obtaining consent from the estate's personal representative. A lawyer who does not comply is properly disqualified for having a conflict of interest.


         Sixteen-year-old Taylor Griffith was driving a pickup truck on State Route 202 on August 24, 2014. The truck crossed the center line and collided head-on with a car driven by Steven Harris. Both drivers were killed in the crash. Steven's wife, Margaret Harris, a passenger in his car, was seriously injured. Taylor was survived by his parents, Kenneth and Jackie Griffith. The Griffiths were insured by Travelers Home and Marine Insurance Company.

         Margaret and her daughter, Stefanie Harris, as personal representative of the estate of Steven Harris, filed suit against Taylor's estate and his parents in December 2014. The complaint alleged that Taylor's estate and his parents were jointly and severally liable for the accident. The complaint further alleged that filing of the lawsuit was necessary because Travelers was not handling the claim in good faith, as evidenced by its failure to disclose the limits of the insurance carried by the Griffiths when requested by the plaintiffs to do so.

         Attorney Michael Jaeger filed a notice of appearance on behalf of all defendants at the request of Travelers. In February 2015, Jaeger filed an answer. Trial was scheduled for January 4, 2016.

         A personal representative had not been appointed for Taylor's estate. When a person dies intestate, as Taylor did, the next of kin have priority to be appointed to administer the estate so long as they petition within 40 days of the death. RCW 11.28.120(2), (7). Otherwise, a court may appoint "any suitable person" as personal representative. RCW 11.28.120(7).

         The Harris estate filed a petition in probate in November 2015, requesting appointment of Brad Moore as personal representative for Taylor's estate. The petition noted that the wrongful death complaint alleged liability not only on the part of Taylor's estate but also on the part of his parents, under the family car doctrine and other legal principles. The petition also mentioned the complaint's allegation that Travelers had acted in bad faith. The petition nominated Moore, an attorney experienced in matters of personal injury, as a suitable person to evaluate the assets and claims of Taylor's estate.

         The Griffith parents, through Jaeger acting as attorney for "defendants, " requested that Kenneth Griffith be appointed instead of Moore. The Griffith parents were the sole beneficiaries of their son's estate, which consisted only of his personal possessions and about $1, 000. The parents denied having personal liability for Taylor's accident. They asserted that the references to Travelers in the petition were irrelevant to deciding who should be appointed as personal representative because Travelers was not a party to the suit.

         At the hearing on the petition, the Harris estate argued that Moore was the more suitable personal representative because of his experience and understanding of the complexities of wrongful death litigation in a case where the estate's only real asset was its potential bad faith claim against its insurance company. The Griffiths objected to Moore, who is known as a plaintiffs attorney. "I just feel like it's not independent enough ... if you're considering appointing Brad."

         The court commissioner ruled that given the potential for conflict between the Griffith parents and their son's estate, it was more untenable to appoint one of the parents than to appoint Moore. The commissioner expressed confidence that Moore would recognize his obligation as a fiduciary to be independent and impartial. The commissioner appointed Moore as personal representative by order dated December 8, 2015. The order specifically authorized Moore "to participate in litigation and to settle or assign claims" on behalf of Taylor's estate.

         Jaeger did not initially acknowledge Moore as a client. Jaeger's first communication to Moore-on December 9, 2015-said he was planning to file a motion for revision of the order appointing Moore so that Kenneth Griffith could serve as personal representative. Moore responded, objecting that Jaeger had not consulted him about that. "I hope you do not take any actions against my interests. As it is, you haven't filed a Notice of Appearance on my behalf and I don't understand why. If you don't believe you represent me, then who do you claim to represent?" Moore asked Jaeger to provide his analysis of the estate's potential exposure in the wrongful death litigation and his strategy to defend the estate.

         On December 15, 2015, Jaeger's firm filed the motion to revise, asserting that Moore was not suitable as the personal representative of the estate because he is a "plaintiffs personal injury practitioner."

          On December 16, 2015, Jaeger filed an amended notice of appearance, stating he was counsel for the Griffith parents and counsel for Moore as the personal representative of Taylor's estate. On December 22, 2015, Jaeger told Moore that his goal was to protect the interests of the estate and the Griffith parents. He asked Moore to reconsider his refusal to step down as personal representative. He refused Moore's request for strategic advice: "We will not produce any sensitive case information given the pending motion for revision."

         Around this time, Travelers appointed attorneys Jacquelyn Beatty and Michael King to serve as additional defense counsel. Beatty filed a notice in the wrongful death action associating herself with Jaeger on behalf of the Griffith parents and Taylor's estate. ...

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