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ETHICS OPINION 397-1950
NUMBER 397 JUNE 1950
Question. An attorney has represented an owner of a riding academy who hired a horse to a rider who got into an accident with a motor vehicle resulting in the horse being killed and the rider being badly injured. The attorney was introduced by the owner of the horse to the rider and has been retained by the rider to represent him in the action against the owner and operator of the motor vehicle. As attorney for the owner of the horse, he will also represent the latter in any action he may have for the loss of his animal. The owner of the horse and the rider are friendly and are not interested in suing one another. The owner of the horse is uninsured. The attorney is of the opinion that the rider has a good cause of action, if any, only against the owner and operator of the automobile and not against the owner of the horse.
May the attorney represent both the owner of the horse and the rider in actions against the owner and operator of the automobile?
Answer. As the owner of the horse and the rider may have rights against each other, the attorney cannot represent both in an action against the owner and operator of the automobile (Canon 6) unless after the situation is fully explained to them, both the owner of the horse and the rider decide that under no circumstances will either of them want to sue the other, and consent that the attorney represent both of them in the proposed action against the owner and operator of the automobile.
The attorney should explain to the rider that he may have a claim against the owner of the horse, and that as attorney for the lawyer he is not in a position to advise whether or not the rider has a cause of action against the owner of the horse. If the rider is disposed to sue the owner of the horse as well as the owner and operator of the automobile, the attorney should withdraw from any representation of the rider, and suggest that the rider obtain other counsel to advise him as to a cause of action against the owner of the horse.
In the same manner, the attorney should tell the owner of the horse that he cannot represent both parties if the owner of the horse is disposed to sue the rider and, in that case, he must give up any representation of the rider in the common suit against the owner of the automobile.
Moreover, having acted for the rider in a preliminary examination of the facts he cannot thereafter represent either party in an action between the rider and the owner of the horse. (See Canon 6, particularly the third paragraph thereof.)
If, after advising each of his clients fully as suggested above, each confirms that he is not in any event interested in suing the other, whether or not he has a good cause of action against the other, then there would appear to be no impropriety in the attorney continuing to represent both clients against the owner and the operator of the automobile.