ETHICS OPINION 704: CONFLICTING INTERESTS; ADVERSE CONCURRENT REPRESENTATION

NEW YORK COUNTY LAWYERS’ ASSOCIATION

Committee on Professional Ethics

QUESTION NO. 704

 

 

QUESTION:

 

Lawyer L represents John and Jane Doe in a malpractice suit that they brought on behalf of their infant child. May Lawyer L represent Jane in a divorce action against John while simultaneously representing John and Jane in the malpractice action?

 

OPINION:

 

DR 5-105(A) of the Lawyer’s Code of Professional Responsibility states:

 

A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105(C).

 

In determining whether a conflict of interest exists under DR 5-105(A), a threshold question is, “Who is the client?” Although an infant may sue, he or she may not appear in an action in person or through a lawyer. N.Y. Civ. Prac, L. & R. § 321(a) (McKinney 1991). Rather, an infant may only appear through his or her parents or guardian. N.Y. Civ, Prac. L. & R. § 1201 (McKinney 1991). Thus, with respect to the malpractice action, each of the parents is the client of Lawyer L for purposes of DR 5-105 (A). See N.Y. State 512(1979) (lawyer representing co executors of estate may not represent one executor against the other).

 

Therefore, unless permitted under DR 5-105(C), Lawyer L is prohibited from representing Jane in the divorce action against John because it would involve Lawyer L in representing one client against another. See N.Y. State 436 (1976) (law firm may not represent wife in divorce action where husband was recently represented by associate in another matter which might be relevant in divorce action without consent of husband). See also Brennan’s, Inc. v. Brennan’s Restaurants, Inc. 590 F.2d 168 (5th Cir. 1979) (lawyer who prosecuted trademark applications for business may not, after business dissolves, represent one side against the other in trademark infringement action).

 

DR 5-105(C), however, permits adverse representation if “it is obvious that the lawyer can adequately represent the interest of each” client and “each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each.”

 

Canon 7 imposes a duty on a lawyer to represent his or her client zealously within the bounds of the law. The test, therefore, is whether there is any factor that makes it less than obvious that Lawyer L will be able to represent zealously Jane in the divorce action, free of any compromising influence or loyalty, while also zealously representing Jane and John in the malpractice suit. If any such factor is present, then the dual representation is not permitted.

 

Typical factors that would call into question a lawyer’s zealous representation include (i) the existence of any legal or factual argument that is potentially helpful in one action, yet possibly detrimental in the other, (ii) any personal interest of the lawyer in the adverse party, and (iii) any financial interest that the lawyer has with respect to the adverse party, such as, for example, the’ possibility of future employment by that party. The following factors also should be considered in determining whether it is obvious that an attorney can simultaneously represent adverse parties in a litigation: (i) the nature of the litigation, (ii) the type of information to which the lawyer may have had access, (iii) whether the client is in a position to protect his interests or know whether he will be vulnerable to disadvantage as a result of the multiple representation (i.e., whether the client is sophisticated in legal matters), and (iv) the questions in dispute (e.g. statutory construction versus facts). Unified Sewerage Agency v. Jelco, Inc.-, 646 F. 2d 1339, 1350 (9 th Cir. 1981).

 

In the course of representing the two parents in the malpractice action on behalf of the infant, for example, Lawyer L may acquire confidential information concerning the financial condition of the parents that would be relevant to the divorce. In such an event, it may be difficult for Lawyer L to exercise independent professional judgment on behalf of each. Further, the concern over revealing confidential information may cause the husband to withhold important information in the divorce action. Additionally, Lawyer L may be tempted to avoid actions in the divorce case that, although they would benefit Jane, could potentially anger John and cause Lawyer L to be discharged from the malpractice suit.

 

Even if it was “obvious” at the outset that Lawyer L could adequately represent the interests of both clients, the lawyer must evaluate the situation throughout the course of the litigation. If circumstances evolve such that it is no longer obvious that a reasonably prudent attorney could adequately represent the interests of two clients with conflicting interests, the lawyer may not continue the adverse concurrent representations. Lawyer L should consider such risks carefully and discuss them thoroughly with both John and Jane before proceeding with the proposed representations. See EC 4-5. If it is not obvious that the lawyer can adequately represent the interests of both clients, consent alone will not suffice.

 

Thus, with the fully informed consent of Jane and John, Lawyer L may represent both parents in the malpractice action on behalf of their infant child and Jane in the divorce action, as long as it is obvious from the outset that Lawyer L can exercise independent professional judgment on behalf of each. To the extent that N.Y. County 671 (1989) is inconsistent with this opinion, it is hereby overruled.

 

CONCLUSION:

Subject to the caveats described above, Lawyer L may represent Jane in a divorce action against John while simultaneously representing John and Jane in the malpractice action on behalf of their infant child, but only with their informed consent and only if it is obvious that Lawyer L can exercise independent professional judgment on behalf of each.

 

March 7, 1995