ETHICS OPINION 651-1976 CONFLICT OF INTEREST

NUMBER 651

QUESTION. QUESTION NO. 651 (76-7)

 

A driver and his passenger were involved in an automobile accident. While turning left from the eastbound lane of a two-way street, their vehicle collided with a vehicle proceeding west in the westbound lane. According to the statements of the driver and the passenger, the accident resulted from the negligence of the driver of the other vehicle who, they alleged, was speeding.

 

The driver consulted an attorney. The passenger, who is not related to the driver, does not intend to sue him. The attorney asks whether or not it would be proper for him to represent both the driver and the passenger in a suit against the driver of the other vehicle. The attorney understands that under former Law there may have been a potential conflict of interest in representation of both the driver and the passenger. However, he believes that the decision of the Court of Appeals in Dole v. Dow Chemical Co., 30 N.Y. 2d 143, 331 N.Y.S 2d 382, 282 N.E. 2d (1972) providing for contribution and comparative negligence and the recent statutory enactments to the same effect may have eliminated such potential conflict. In this regard, the attorney notes that the driver’s insurance carrier would furnish counsel to defend any claim against the driver brought by the driver of the other vehicle for contribution to the passenger’s recovery.

 

ANSWER.

 

EC 5-15 provides that a lawyer should never represent in litigation multiple clients with actually differing interests and that there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. EC 5-17 specifies that co-plaintiffs in personal injury cases are clients with potentially conflicting interests. DR 5-105 provides that a lawyer shall decline proffered employment if the exercise of his independent professional judgment on behalf of a client is likely to be adversely affected by the acceptance of such employment, except that he may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure and understanding of the possible effect of such representation upon the exercise of the lawyer ‘s independent professional judgment on behalf of each.

The inquiring attorney correctly understands that, prior to the decision of the Court of Appeals in Dole v. Dow Chemical Co. and the enactment of CPLR § § 1401-04 (contribution) and CPLR §§1411-13 (comparative negligence), there was ordinarily a conflict of interest in representation of both the driver and the passenger of a vehicle involved in an automobile accident, As a result, this Committee deemed such representation to be improper In a variety of specific factual situations. (See Opinions Nos. 521, 538 and 570 of this Association.) These opinions were in accordance with the general rule that a lawyer may not represent both the driver and the passenger if there is any possible liability on the part of the driver to the passenger. (See Informal Opinion No. 723 of the American Bar Association.)

 

In the opinion of this Committee, the decision of the Court of Appeals in Dole v. Dow Chemical Co. and the enactment of the contribution and comparative negligence statutes did not eliminate the potential conflict of interest in such representation. Notwithstanding these developments, under present law there ordinarily is possible liability on the part of the driver of a vehicle involved in an automobile accident to his passenger. For this reason, the respective interests of the driver and the passenger ordinarily are potentially conflicting. Such potential conflict could, for example, adversely affect the exercise of the lawyer’s independent professional judgment, on behalf of each client in conducting settlement negotiations or determining trial tactics. Accordingly, the representation of both the driver and the passenger remains, as a general rule, improper. (See Opinion No. 349 of the New York State Bar Association.)

 

The facts stated by the inquiring attorney do not appear to justify an exception to the general rule. Although the driver and the passenger have taken the position that the accident resulted from the negligence of the driver of the other vehicle, the evidence may ultimately prove that they were mistaken. Furthermore, this factual situation is not one in which the non-negligence of the driver may safely be presumed. A driver may safely be presumed to have been free from negligence only in special situations, such as where his vehicle has been struck while properly parked. (See Opinion No. 349 of the New York State Bar Association.) Finally, the fact that the driver’s insurance carrier would furnish counsel to defend any claim against him for contribution does not eliminate the possibility of an adverse effect upon the inquiring attorney’s independent professional judgment on behalf of each of his clients. The inquiring attorney would be nonetheless representing the driver as well as the passenger and would therefore be obligated to serve the respective interests of the driver and the passenger, which, as indicated above, are potentially conflicting.

 

It is, therefore, the opinion of this Committee that nothing Dole decision or in the contribution and comparative negligence statues requires any change in this result. The inquiring attorney, under the facts stated, should not represent both the driver and the passenger.

 

May 6, 1976