ETHICS OPINION 538-1964 CONFLICT OF INTEREST

NUMBER 538

QUESTION

 

Two sisters sustained personal injuries in an automobile accident. Sister “A” was the driver; Sister “B” was a passenger. As a result of the medical treatment received by Sister “A”, it appears that she may have a cause of action for malpractice against the treating physician.

 

Both Sisters “A” and “B” have asked this office to represent them in connection with all of the pending actions.

 

Sister “A” was advised that this office could not represent her in connection with the action arising directly out of the automobile accident, in view of the fact that as driver, she was a prospective defendant herself.

 

This office did, however, accept a retainer from Sister “A” for the malpractice action and from Sister “B” for the negligence action.

 

Please advise whether under the foregoing circumstances it would be consistent with’ the Canons for this office to continue to represent each of them in the independent actions.

 

ANSWER.

 

It is quite fundamental that an attorney should not represent conflicting interests. Canon 6 of the Canons of Professional Ethics reads in part as follows:

 

“The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”(p, 766)

 

Obviously in representing Sister “A” in the malpractice action, It may well be that the attorney would obtain the secrets or confidences which might very well affect the interest of his clients, It would be inconsistent for the attorney under the circumstances to represent A as a plaintiff and to sue A in an action brought against A by B, The apparent conflict in such representation would tend to bring the Bar in disrepute because it would appear that an attorney was representing A in one instance as a plaintiff and suing her in another instance as a defendant.

In addition, in our opinion another obstacle to the representation of Sister “A” by the attorney would appear to be the possibility of an abuse of confidence reposed in the attorney. It may well be that in representing B and A, the attorney would acquire certain confidential information which might adversely affect the interests of either A or B, Obviously, in order to avoid the possibility of using information obtained under these circumstances, the attorney should not continue to represent Sister “A” He should also discontinue his representation of Sister “B” unless he is completely satisfied that in connection with such representation, he will not have occasion to use any confidential information communicated to him by Sister “A.”

 

November 4, 1964