ETHICS OPINION 535-1964 CONFLICT OF INTEREST

NUMBER 535

QUESTION

 

 

I should like to know whether it is proper for me to represent “A” in connection with a claim and action for personal injuries based on the facts as herein presented.

 

On November 12, 1962 I was retained by “B” to prosecute on his behalf an action for property damage and personal injuries resulting out of an automobile accident of November 4, 1962. I handled that matter in the claim stage and prepared the same for suit. During the year 1963 I obtained trial counsel to handle this matter during the pre-trial and trial stages. This matter is now in suit but not yet on the Trial Calendar.

 

On or about the 13th day of July, I received a telephone call from “A” He stated that he had been referred to me by “B” and wished to come into the office to discuss an accident in which he had been involved with “B” I learned that the accident was an intersection collision involving a car driven by “B” and another car driven by “X”, “A” was a passenger in “B’ s” automobile, Although “A” was of the opinion that the accident was caused solely by the other driver and not “B”, I advised him of the contributory negligence rules and the necessity of joining “B” in the action. I asked “A” to have “B” call me. Several days later “B” did call and an appointment was made for him to come into my office and discuss the matter. I Informed “B” of the necessity of his being a defendant and of the impropriety of my representing both the driver and the passenger and of the necessity of independent counsel for each. I further advised “B” that I would not, under any circumstance, be interested in handling his matter since it involved $300.00 property damage and had to be commenced in a Westchester Court. “B” agreed to allow the trial counsel, who was handling his 1962 accident, to be substituted for me and to also represent him in connection with the 1964 accident. “B” understood and agreed that I would represent “A” and that of necessity an action would be commenced against him,

 

On August 4, 1964 a Closing Statement was sent to the client, “B”, by certified mail and to the Judicial Conference indicating that I had been substituted in the 1962 matter without any fee arrangement.

 

I have filed a statement of retainer with the Judicial Conference indicating that the same is subject to the approval of the Ethics Committee, I have written a claim letter and have requested forms from MVAIC to insure that “A” is protected until such time as I am in receipt of the Committee’s opinion.

 

Please be good enough to advise as to whether I am in a position to represent “A” under the circumstances as herein outlined. Further, in discussing the possibility that I could not represent him with “A”, he asked whether I could recommend to him another attorney; I should like to know if that is permissible.

 

ANSWER

 

So long as the inquiring attorney has effectively terminated his representation of “B” he may undertake to represent “A” unless, while acting for “B” or at his interview with him in connection with the second accident, the attorney gained any information from “B” which might possibly be helpful in establishing his liability to “A” (New York County Nos. 534, 505 and 207). If the attorney is unable to represent “A”, there is no objection in his recommending another attorney.

 

October 6, 1964