August 18, 2014 – Shannon Spoon, individudally and as Personal Representative of Daniel Spoon, Deceased v. Arturo Mata and Burn Construction Company, Inc. and Korina Flores, as Parent, Guardian, and Next Friend of minor, Noah Spoon, No. 32,674

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _AUGUST 18, 2014

NO. 32,674
SHANNON SPOON, individually and as

Personal Representative of Daniel Spoon,
Deoeased,

Plaintiff-A ppellee,
V.

ARTURO MATA and BURN
CONSTRUCTION COMPANY, INC.,

Defendants,
and

KORINA FLORES, as Parent, Guardian
and Next Friend of minor Noah Spoon,

Intervenor-A ppellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge

Blenden Law Fim
Dick A. Blenden
Carsbad, NM

Templeman & Crutchfield, P.C.
C. Barry Crutchfield
Lovington, NM
for Appellee
Martin, Dugan & Martin
Kenneth D. Dugan
Carlsbad, NM
for Appellant
Jarmie & Associates
Mark D. Standridge
Las Cruces, NM
Allen, Shepherd, Lewis & Syra, P.A.
David A. Gonzales
Albuquerque, NM
for Amicus Curiae New Mexico Defense Lawyers Association
Michael B. Browde
Albuquerque, NM
David J. Stout
Albuquerque, NM
for Amicus Curiae New Mexico Trial Lawyers Association

OPINION
FRY, Judge.
{1} 	Korina Flores (Petitioner) appeals the district court’s order denying her petition
to intervene and to be appointed co-personal representative in a wrongful death action
brought by Plaintiff, Shannon Spoon, wife of Decedent, Daniel Spoon, who was the
father of Petitioner’s child (Child). Petitioner sought to intervene to assert Child’s
loss of consortium claim and further sought appointment as co-personal representative
in the wrongful death action in order to protect Child’s interests as a statutory
beneficiary. Petitioner argued that Child’s interests were not adequately represented
by Spoon’s counsel because a conflict of interest existed due to Spoon’s role as
personal representative and her pursuit of individual claims against Defendant.
{2} 	We agree with Petitioner that the district court erred in not permitting Petitioner
to intervene to assert Child’s loss of consortium claim. However, we disagree that
there is currently a conflict of interest as we understand that phrase. As we explain
below, a conflict of interest is something that affects an attorney’s relationship with
his or her client, and no such conflict has yet developed in the relationship between
Spoon and her attorney. Instead, what exists in this case may be called an “adversity
of interest” between Spoon and Child. 	We conclude that this adversity of interest
cannot be resolved by appointing Petitioner as a co-personal representative, as

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Petitioner argues. Accordingly, although we reverse and remand to allow Petitioner
to intervene to assert Child’s loss of consortium claim, we affirm the district court’s
decision denying Petitioner’s appointment as co-personal representative.
BACKGROUND
{3} 	Decedent Daniel Spoon died as a result of a motorcycle accident allegedly
caused by an employee of Defendant Burn Construction Company, Inc. Decedent was
married to Shannon Spoon at the time of his death. In the year preceding his death,
Decedent had also fathered Child with Petitioner.
{4} 	Spoon filed suit shortly after the accident against the driver of the vehicle and
Burn Construction. Spoon was appointed the personal representative for purposes of
the wrongful death action and also pursued claims, in her individual capacity, for
bystander recovery and loss of consortium. 	At the time the complaint was filed,
Spoon did not name Child as an heir of Decedent in the complaint because Decedent’s
paternity had not yet been established.
{5} 	Once paternity was established, Petitioner moved to intervene in the lawsuit to
assert Child’s claim for loss of consortium and to represent Child’s interest in the
wrongful death action. 	In order to protect Child’s interest, Petitioner sought
appointment as a co-personal representative with Spoon. Following a hearing, the
district court found that there was no evidence that Child’s interests in the wrongful
death action were not adequately represented. The district court further found that

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Spoon’s counsel did not have a conflict of interest in representing Spoon both in her
capacity as personal representative in the wrongful death action and in her individual
capacity in regard to her loss of consortium and bystander recovery claims. 	The
district court accordingly denied Petitioner’s motion to intervene. Petitioner appeals.
DISCUSSION
{6} 	Petitioner’s arguments on appeal can be succinctly grouped into two main
contentions. 	First, she claims that the district court erred in not allowing her to
intervene to assert Child’s loss of consortium claim. Second, she contends that the
district court erred in not allowing her to serve as co-personal representative due to her
belief that Spoon’s counsel could not adequately represent Child’s interest in the
wrongful death action. We address these issues in turn.
I. 	The District Court Erred in Not Permitting Petitioner to Intervene to
Assert Child’s Loss of Consortium Claim
{7} 	Spoon appeared to concede in briefing that Petitioner should have been
permitted to intervene in the suit to assert Child’s loss of consortium claim. 	We
appreciated counsel’s forthrightness in this matter because we agree that there was no
basis to preclude Petitioner’s intervention to pursue Child’s individual loss of
consortium claim. 	See Rule 1-024 NMRA. 	At oral argument, however, Spoon’s
counsel stated that it was Spoon’s position that Child should not be permitted to
intervene, but counsel provided no substantive argument as to why it would be

4
impermissible. 	Because 	counsel 	has 	offered 	no 	reason 	to 	preclude 	Child’s
intervention and because we see none ourselves, Petitioner shall be permitted to
intervene for this purpose on remand.
II. 	The 	District 	Court 	Properly 	Denied 	Petitioner’s 	Motion 	Seeking
Appointment as Co-Personal Representative
Standard of Review
{8} 	Before stating the standard of review, we provide context and distinguish
between the terms “conflict of interest” and “adversity of interest” because Petitioner
often conflates these two differing concepts. First, insofar as the issues in the case are
concerned, a conflict of interest is one that arises within the attorney/client
relationship. See Rule 16-107(A) NMRA (defining a conflict of interest as impacting
an attorney’s representation of one or more clients). In a wrongful death action, the
attorney/client relationship exists between the personal representative and his or her
attorney. 	Spencer v. Barber, 2013-NMSC-010, ¶ 9, 299 P.3d 388. 	We therefore
consider the relationship between the personal representative and his or her attorney
when considering the attorney’s responsibilities of loyalty, confidentiality, and
conflicts. Id.
{9} 	Although a statutory beneficiary is not in an attorney/client relationship with
the attorney of the personal representative, the statutory beneficiary is an intended
beneficiary of the attorney/client relationship that exists between the personal

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representative and his or her attorney. See id. ¶ 10. Because a statutory beneficiary
is an intended beneficiary of this attorney/client relationship, both the attorney and the
personal representative owe a duty to act with reasonable care regarding the interests
of the statutory beneficiary. Id. ¶¶ 8, 13. Thus, where there is a significant risk that
an attorney’s representation of the personal representative will be materially limited
by the attorney’s responsibilities to the statutory beneficiary, a conflict of interest may
exist between the personal representative and his or her attorney. 	See Rule 16-107
(stating that a concurrent conflict of interest exists where there is a significant risk that
the representation of one or more clients will be materially limited by the lawyer’s
responsibilities to a third person).
{10} 	In 	this 	case, 	however, 	Petitioner 	does 	not 	assert 	that 	the 	attorney’s
representation of Spoon in her individual or representative capacities will be
materially limited by the attorney’s duties to Child as a statutory beneficiary. Instead,
Petitioner asserts that Child’s interests will not be protected by Spoon’s or her
counsel’s representation. Thus, Petitioner is not asserting that a conflict of interest
exists between Spoon and her counsel but rather what would more appropriately be
termed an “adversity of interest” between Child and Spoon that Petitioner argues
should preclude Spoon from serving as personal representative.
{11} 	Having established that Petitioner is asserting the existence of an adversity of
interest rather than a conflict of interest, in order to determine the standard of review,

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we first clarify our understanding of Petitioner’s argument as to the remedy she seeks.
Petitioner is often unclear in briefing as to whether Spoon should be disqualified from
acting as personal representative in general or whether Petitioner simply seeks
appointment as co-personal representative. 	After extensive review of Petitioner’s
brief, we understand Petitioner to request that her counsel be permitted to represent
Child’s interests as a statutory beneficiary and in his individual claims while Spoon’s
counsel represents Spoon’s interests as a statutory beneficiary and in her individual
claims.
{12} 	Petitioner frames her argument under the rule pertaining to mandatory
intervention. See Rule 1-024(A)(2). Under this framework, Petitioner argues that if
we conclude that Spoon cannot adequately represent Child’s interest in the wrongful
death action due to an adversity of interest, we should order that Petitioner be
appointed co-personal representative to protect Child’s interest. Id. (“[A]nyone shall
be permitted to intervene in an action . . . when the applicant claims an interest
relating to the property or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.”). This Court has previously
disapproved of—but not foreclosed—the use of mandatory intervention by a wrongful
death statutory beneficiary. See Dominguez v. Rogers, 1983-NMCA-135, ¶ 16, 100

1Petitioner also argues that Spoon’s attorney’s representation on behalf of the
statutory beneficiaries has been “inadequate.” 	The district court rejected this
argument, and we see no reason to second-guess that assessment.
7
N.M. 605, 673 P.2d 1338 (“We do not believe the legislature intended Rule [1-
0]24[(A)] to operate as a device by which a party could thwart the representative form
of action authorized in wrongful death suits. Otherwise, there would be no reason why
every statutory beneficiary could not intervene as a matter of right.”). Regardless,
because we have already concluded that Petitioner may intervene to assert Child’s loss
of consortium claim, we review Petitioner’s arguments according to the merits of the
alleged adversities of interest that Petitioner asserts, not under the test for mandatory
intervention.1
{13} 	Even though we are addressing whether an adversity of interest exists sufficient
to preclude Spoon’s serving as the personal representative, we apply the de novo
standard of review applicable to the determination of whether a conflict of interest
exists. See State ex rel. Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-
009, ¶ 19, 126 N.M. 664, 974 P.2d 158 (stating we review whether a conflict of
interest exists de novo). Although we distinguished above between an adversity of
interest and a conflict of interest, we believe the determination of whether either exists
is sufficiently similar to warrant application of the same standard of review.
Accordingly, we review Petitioner’s argument de novo.
A. 	Adversity of Interest

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{14} 	Petitioner argues that an adversity of interest exists because Spoon’s conduct
in the related probate proceedings evinces a hostility toward Child’s rights as an heir
and because Spoon’s individual claims against Defendant make Spoon’s and Child’s
interests in the distribution of any recovery adverse to one another. 	Petitioner
contends that these adversities of interest can be resolved by disqualifying Spoon from
representing Child’s interest in the wrongful death action and appointing Petitioner
co-personal representative.
{15} 	Petitioner first contends that the facts surrounding Spoon’s appointment as
personal representative for the estate—not the wrongful death action—establishes an
adversity of interest. Petitioner claims that before paternity was established, Spoon
sought appointment as the executor of Decedent’s estate without notifying Child and
represented to the probate court that she was aware of no other heirs besides herself
and Decedent’s mother. Petitioner contends that this conduct by Spoon indicates that
Spoon’s interests are directly adverse to Child’s and, therefore, she cannot fulfill her
duties as the personal representative in the wrongful death action.
{16} 	We are unpersuaded that this conduct indicates an adversity of interest
sufficient to preclude Spoon from representing Child as the personal representative.
Under the Act, Spoon is required to distribute any recovery under the claim in strict
accordance with the statutory distribution provisions. NMSA 1978, § 41-2-3 (2001);
Spencer, 	2013-NMSC-010, 	¶ 	22 	(“[T]he 	personal 	representative 	has 	a

2The personal representative’s actions in Spencer created a conflict of interest,
in part, because once the attorney learned that the personal representative was
disputing a statutory beneficiary’s entitlement to recovery, the attorney could no
longer simply distribute the proceeds of the wrongful death action because doing so
would violate his duties to his client. Id. ¶¶ 24-25.
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nondiscretionary duty to distribute the wrongful death proceeds in the ratio prescribed
by the [Act].”). 	Under these provisions, Spoon and Child will each receive fifty
percent of any recovery based on the wrongful death action. Section 41-2-3(B).
{17} 	During the time Spoon sought appointment as personal representative of the
estate, test results confirming that Decedent was Child’s father were still being
processed. 	Once paternity was established, Spoon consistently maintained, both
below and on appeal, that Child became entitled to his statutory share of any wrongful
death recovery and that she intends to fulfill her duty toward him. 	Spoon’s
acknowledgment of this duty stands in sharp contrast to the facts in Spencer, where
the personal representative’s challenge to another statutory beneficiary’s entitlement
to his share of the wrongful death proceeds created a conflict of interest.2 2013-
NMSC-010, ¶ 25. Accordingly, we do not agree with Petitioner that Spoon’s conduct
in the probate proceedings creates an adversity of interest that requires her
disqualification or the appointment of a co-personal representative.
{18} 	Second, as to Petitioner’s argument that Spoon’s pursuit of her individual
claims conflicts with her role as personal representative, we briefly summarize the
nature of the adversity of interest that Petitioner alleges. Petitioner argues that Spoon,

10
invested with settlement authority in her capacity as personal representative, has an
incentive to allocate settlement proceeds toward her individual claims and away from
the wrongful death action. Petitioner claims that this creates an adversity of interest
necessitating the appointment of Petitioner as co-personal representative to protect
Child’s interest because otherwise Spoon will have every incentive to maximize her
recovery to the detriment of Child.
{19} 	We recognize that there is an adversity of interest but conclude that in this
context it does not require that Spoon be removed. 	We cannot speculate whether
Spoon will ultimately comply with her statutorily mandated responsibilities to Child
in the event of a recovery. As we discuss below, however, her failure to do so would
expose both her and her attorney to significant liability. Here, we merely conclude
that the fact that a personal representative is also pursuing individual claims in the suit
is not a sufficient basis by itself to presume that the interests of the personal
representative and the statutory beneficiaries are so adverse as to preclude the
individual from representing the statutory beneficiaries’ interests in the action. 	Cf.
Gresham v. Strickland, 784 So.2d 578, 581-82 (Fla. Dist. Ct. App. 2001) (stating that
“[h]ostility or tension between a trustee and potential beneficiaries” or “disagreements
over litigation” are not grounds for removal of a personal representative).
{20} 	We recognize that this adversity of interest between Child and Spoon could
conceivably evolve into a conflict of interest between Spoon and her attorney with

11
respect to Spoon’s individual claims, on the one hand, and her claim as a statutory
beneficiary of the wrongful death estate, on the other hand. 	For example, if the
tortfeasor’s insurer were to offer policy limits that could not reasonably compensate
all claims, then Spoon’s attorney may find that his representation of Spoon’s
individual claims materially limits his responsibilities to her wrongful death action,
or vice versa. But such a conflict has not yet developed in this case and may never
develop.
{21} 	As amici curiae have pointed out, where one of the beneficiaries is a minor, it
is often the practice to seek court approval of any settlement and appointment of a
guardian ad litem to advise the district court on the appropriateness of the allocation
of settlement amounts. See Collins ex rel. Collins v. Tabet, 1991-NMSC-013, ¶¶ 30-
31, 111 N.M. 391, 806 P.2d 40 (“[W]e have no reason to doubt [] that it is the general
practice in New Mexico for a guardian ad litem to be appointed to represent the
interests of a minor in any proceeding to secure court approval of a settlement
involving the minor. . . . 	The guardian ad litem thus may fulfill the dual role of
providing information to the court to enable it to pass on the reasonableness of a
settlement, while at the same time protecting the ward’s interests by zealous advocacy
and thorough, competent representation.”). We encourage the parties to consider this
process in the event that a settlement is reached.

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B. 	Appointing 	Co-Personal 	Representatives 	Would 	Not 	Remedy 	Any
Potential Adversity of Interest
{22} 	Although we conclude that the adversity of interest we have recognized does
not require removal of Spoon as the personal representative, we acknowledge that
Petitioner’s concerns are not entirely unfounded. 	See Home Ins. Co. v. Wynn, 493
S.E.2d 622, 626 (Ga. Ct. App. 1997) (holding that a personal representative breached
her fiduciary duty to wrongful death beneficiaries by allocating settlement proceeds
in such a way as to prioritize her individual claims over the wrongful death action).
We are mindful that disagreements may arise between the beneficiaries themselves
and between the beneficiaries and the personal representative in wrongful death
actions regarding the prosecution of the claim. See generally Holmes v. McClendon,
76 S.W.3d 836, 839 (Ark. 2002); Spencer, 2013-NMSC-010, ¶ 2. We therefore also
consider Petitioner’s argument that her concerns would 	be remedied by the
appointment of a co-personal representative.
{23} 	Petitioner relies on Dominguez and Lajeuenesse to argue that the appointment
of a co-personal representative is an accepted practice in New Mexico. In re Estate
of Lajeuenesse, ex rel. Boswell v. Bd. of Regents of UNM, 2013-NMCA-004, 292 P.3d
485, ¶ 17 (noting that “[e]ven if there were co-personal representatives, they serve the
singular purpose of bringing the wrongful death action”); Dominguez, 1983-NMCA-
135, ¶ 11 (observing that the then applicable version of Section 41-2-3 refers to the

13
appointment of “personal representative or representatives” (internal quotation marks
omitted)). 	Petitioner’s argument utilizes some selective use of quotations. 	For
instance, the only portion of Dominguez that could support Petitioner’s argument is
a quotation from an earlier version of the wrongful death statute stating that a
wrongful death action “shall be brought by and in the name [or names] of the personal
representative [or representatives].” 	Dominguez, 1983-NMCA-135, ¶ 11 (citing
Section 41-2-3 (Repl. Pamp. 1982)). 	We reject Petitioner’s reliance on an earlier
version of the statute cited in Dominguez, especially where the statute, in its current
form, could be read to foreclose Petitioner’s argument because an amendment
explicitly removed the reference to multiple personal representatives. Section 41-2-3
(stating that a wrongful death action “shall be brought by and in the name of the
personal representative of the deceased person” (emphasis added)). 	Furthermore,
even when the statute did provide for multiple representatives, the Dominguez Court
stated that “[t]he reference in the wrongful death statute to the possibility of multiple
representatives does not automatically give potential intervenors the right to join [as
co-personal representatives],” which is precisely what Petitioner is seeking in this
case. 1983-NMCA-135, ¶ 11.
{24} 	We are similarly unpersuaded that Lajeuenesse supports Petitioner’s argument.
In stating that it is possible to designate more than one personal representative, this
Court cited to Wachocki v. Bernalillo County Sheriff’s Department, 2010-NMCA-021,

14
¶ 2, 147 N.M. 720, 228 P.3d 504. 	In Wachocki, the “co-personal representatives”
were parents of the decedent and, more importantly, represented by the same attorney.
Id. 	While this practice could easily be called into question by both the statutory
language and our case law, the multiple representation in Wachocki was never
challenged. 	See 	In 	re 	Estate 	of 	Lajeuenesse, 	2013-NMCA-004, 	¶¶ 	16-17
(emphasizing that the personal representative is the “single person” who brings the
wrongful death action and noting the Legislature’s use of the “singular” in designating
who may bring the action). Regardless, we note the significant difference between the
prosecution of the claim by two parents of a deceased child represented by one
attorney and the dual appointment Petitioner seeks in this case.
{25} 	Petitioner seeks appointment as co-personal representative due to the adversity
of interest between Child, as a statutory beneficiary, and Spoon, as personal
representative. We fail to see how allowing Petitioner—who also has an individual
claim against Defendant—to serve as co-personal representative would remedy this
adversity. If Petitioner is appointed co-personal representative, Petitioner will owe
the same duties of care to Spoon as a statutory beneficiary that Spoon, in her capacity
as personal representative, owes to Child. See Spencer, 2013-NMSC-010, ¶ 8 (“The
personal representative has a duty to act with reasonable care regarding the interests
of the statutory beneficiaries[.]”). Petitioner fails to explain how placing herself into

15
the very adversity that she argues should disqualify Spoon would remedy the adversity
she argues already exists.
{26} 	As we noted above, Petitioner foresees a situation in which Spoon’s attorney
represents her interests in the wrongful death action and in her individual claims,
while Petitioner’s attorney would represent Child’s similar respective interests. Along
these lines, Petitioner argues that Child has the right to choose his own counsel to
represent his interests in the wrongful death action and that a court should not override
this right, absent compelling circumstances. See Chappell v. Cosgrove, 1996-NMSC-
020, ¶ 7, 121 N.M. 636, 916 P.2d 838 (noting similar argument and quoting Ramsay
v. Boeing Welfare Benefit Plans Comm., “The court is also mindful that a person’s
right to select his own counsel, although not an absolute right, may be overridden only
where compelling reasons exist.” 662 F. Supp. 968, 970 (D. Kan. 1987)). Petitioner
contends that allowing Spoon’s counsel to prosecute the wrongful death action on
Child’s behalf violates this right.
{27} 	Although we agree with Petitioner that generally a litigant has the right to
choose his or her own counsel, we conclude that the structure and purpose of the
Wrongful Death Act militates against recognizing a right by statutory beneficiaries to
prosecute the claim on their own behalf. As this Court recently stated, the personal
representative “remains distinct from the beneficiaries as the party who must bring the
wrongful death action and as the only party to the action pursuing the claims for

16
damages that result from the injuries.” In re Estate of Lajeuenesse, 2013-NMCA-004,
¶ 12; see Dominguez, 1983-NMCA-135, ¶ 10 (“The personal representative is the only
one who may bring the action.”). As the sole party pursuing the claims, the personal
representative also has the right to choose counsel. See Leyba, 1995-NMSC-066, ¶ 22
(noting that the personal representative is vested with control over litigation
decisions); see also Brewer v. Lacefield, 784 S.W.2d 156, 158 (Ark. 1990) (stating
that it is the duty of the personal representative to choose counsel to pursue the
wrongful death action).
{28} 	This 	comports 	with 	the 	Legislature’s 	determination 	that 	the 	personal
representative stands in place of the statutory beneficiaries in bringing a wrongful
death action. See Chavez v. Regents of UNM, 1985-NMSC-114, ¶ 8, 103 N.M. 606,
711 P.2d 883 (“The personal representative is only a nominal party who was selected
by the Legislature to act as the statutory trustee for the individual statutory
beneficiaries.”). The Act’s purpose in utilizing a personal representative to “centralize
the claims and prevent multiple and possibly contradictory lawsuits” presents a
compelling reason to deny statutory beneficiaries the right to intrude on the role of an
otherwise properly appointed personal representative. 	Id. ¶ 10; cf. Spencer, 2013-
NMSC-010, ¶ 8 (“Statutory beneficiaries are generally not permitted to join as parties
in a wrongful death lawsuit because the personal representative is the beneficiary’s
trustee[.]”); Mackey v. Burke, 1984-NMCA-028, ¶ 12, 102 N.M. 294, 694 P.2d 1359

3Petitioner argues in the alternative that if she is not appointed co-personal
representative, Spoon’s counsel should be precluded from taking any fees or costs
from Child’s portion of the wrongful death recovery. The issue of which attorney is
entitled to fees out of Child’s wrongful death recovery has been quite conspicuous
throughout Petitioner’s arguments on appeal. 	At least one jurisdiction that has
addressed this issue has held that an attorney hired by a beneficiary to protect his or
her interests is hired at the beneficiary’s expense. 	Brewer, 784 S.W.2d at158-59.
However, we think this issue, if it arises in the future course of litigation, should be
addressed by the district court in the first instance.
17
(“If each potential beneficiary was considered a personal representative, the suits
could be unending and contradictory.”), overruled on other grounds by Chavez, 1985-
NMSC-114.3
{29} 	Furthermore, we believe any potential adversity of interest that arises can be
remedied by applying well-established principles of New Mexico law, not by the
appointment of co-personal representatives. As we stated above, both Spoon and her
counsel owe a duty to Child to act with reasonable care regarding his interests.
Spencer, 2013-NMSC-010, ¶¶ 8-13. This includes their duties to ensure that Child
receives a proper allocation of any recovery from the wrongful death action. Id. ¶ 22
(explaining that “the personal representative has a nondiscretionary duty to distribute
the wrongful death proceeds in the ratio prescribed by the Wrongful Death Act”);
Lebya, 1995-NMSC-066, ¶ 28 (holding that an attorney has a duty to “exercise
reasonable care to ensure that the statutory beneficiaries actually receive the proceeds
of any wrongful death action”). Failure to comply with these duties could potentially
expose both Spoon and her counsel to significant legal liabilities. 	Spencer, 2013-

4Proceeding in the face of a conflict without resolving the conflict can also
result in serious disciplinary sanctions. 	See In re Montoya, 2011-NMSC-042, 150
N.M. 731, 266 P.3d 11 (indefinitely suspending attorney for, in part, proceeding with
representation in wrongful death action despite clear conflicts of interest between his
clients and improperly allocating settlement amounts).
18
NMSC-010, ¶ 10 (stating that where an attorney breaches his duty to the personal
representative to render services with reasonable skill and care, the statutory
beneficiary has a claim against the attorney); Dominguez, 1983-NMCA-135, ¶ 19
(recognizing that statutory beneficiaries can assert a cause of action against a personal
representative who fails to properly fulfill his or her statutory responsibilities).
Proceeding in the face of a conflict of interest in the attorney’s relationship with his
client, the personal representative, without taking action to resolve the conflict can
also constitute a breach of the attorney’s duty. 4 Spencer, 2013-NMSC-010, ¶ 27.
Finally, as our Supreme Court has recognized, a statutory beneficiary is not precluded
from pursuing traditional tort claims such as misrepresentation, fraud, or collusion.
Id. ¶ 5. We believe that the risk of potential liability provides a strong incentive to a
personal 	representative 	and 	his 	or 	her 	counsel 	to 	ensure 	that 	the 	statutory
beneficiaries’ interests are properly protected.
{30} 	In sum, although we recognize that in some circumstances a personal
representative’s interests can become adverse to those of the statutory beneficiaries
such that action must be taken to resolve the adversity, we decline to hold as a matter
of law that a statutory beneficiary with individual claims against the defendant is

19
precluded from serving as the personal representative in a wrongful death action.
While 	we 	conclude 	that 	Spoon 	can 	remain 	as 	the 	wrongful 	death 	personal
representative, it is imperative that Spoon’s counsel remain vigilant to ensure that his
representation of Spoon in both her individual and representative capacities does not
run afoul of his duty to Child and that Spoon remain mindful of her statutory duties.
Spencer, 2013-NMSC-010, ¶ 13; see also Holmes, 76 S.W.3d 836; Leyba, 1995-
NMSC-066.
CONCLUSION
{31} 	For the foregoing reasons, we remand to the district court for proceedings
consistent with this opinion.
{32} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge

I CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL D. BUSTAMANTE, Judge (Specially concurring).

20

21
Bustamante, Judge (specially concurring).	1
{33} 	I concur in the Opinion and the conclusion that there is not currently an	2
adversity 	of 	interest 	that 	necessitates 	the 	removal 	of 	Shannon 	as 	personal	3
representative or the appointment of Petitioner as co-personal representative. I write	4
separately to emphasize one particular animosity in this case that threatens to injure	5
the interests of both statutory beneficiaries long before any adversity claimed by	6
Petitioner will: the animosity between the attorneys.	7
{34} 	The record below, the briefing in this Court, and counsels’ oral argument all	8
reveal an unacceptable level of personal rancor. It has been disheartening to witness	9
the attorneys unnecessarily exacerbate the animosity that is prone to otherwise exist	10
between Shannon and Petitioner under these circumstances. I cannot know the cause	11
of this undue animosity—perhaps there is a history of conflict between counsel;	12
perhaps the potential for division of fees has overtaken common courtesy. Whatever	13
the source, I fear that practically speaking, the relationship between the attorneys has	14
deteriorated to such an extent that the attorneys risk subjugating the interests of their	15
respective clients to their own personal vendettas. Perhaps most concerning, I am not	16
sure that counsel appreciate where their clients’ interests end and their own personal	17
animosity begin.	18

22
{35} 	My concerns lead me to disagree with the Opinion’s suggestion that use of a	1
guardian ad litem should be “considered” by the parties and the district court. In my	2
view, the possibility that the attorneys can work together toward the best interest of	3
their clients is so bleak that I would require the immediate appointment of a guardian	4
ad litem to ensure that Child’s interests are protected. 	I do not condemn zealous	5
advocacy. But zeal as an end unto itself can quickly come unmoored from the client’s	6
best interest and risk, as this case demonstrates, pushing the parties further away from	7
a swift and reasonable resolution of their case.	8
9
MICHAEL D. BUSTAMANTE, Judge	10