Opinion #21. Representation of Passenger and Driver in Personal Injury Case

Issued by the Professional Ethics Commission

Date Issued: January 15, 1981

Facts

Client W was involved in an auto accident while driving a vehicle owned by her husband, client H. The child of H & W was a passenger in the automobile and was killed in the accident. The inquiring attorney has filed a civil action on behalf of W, for her personal injuries, and on behalf of H, for his property damage claim, for loss of consortium, as next friend of the deceased child of H & W and as Administrator of the child’s estate. The defendant is the operator of the other automobile. The attorney asserts that all his clients agree the operator of the other automobile was solely negligent. The operator of the other automobile has, however, filed a counterclaim and third party claim for contribution against client W. H & W have no insurance. The defendant is insured. The attorney has reviewed the potential liability of W for damage to the property of H and for the death of their child with both H & W and both consent to the lawyer’s representation of both of them.

Opinion

We conclude that the attorney may not represent client W at the same time as he is representing client H, in his own capacity and as a surrogate for their minor child. Maine Bar Rules 3.4(b) and (c) prohibit the acceptance and continuation of multiple employment when the attorney’s independent professional judgment on behalf of one client is likely to be adversely affected by his representation of another or if the attorney would be representing differing interests. An attorney may represent multiple clients only if it is obvious that he can adequately represent the interests of each and each consents to representation after full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment.

If clients H & W were estranged, or if they were not husband and wife, it would be apparent that the representation undertaken could involve the attorney in representing differing interests and also could involve the kind of multiple employment in which exercise of the attorney’s independent professional judgment in behalf of one client could be adversely affected by his representation of the other. Stripped of the marital relationship, this is a case of an automobile accident in a borrowed car with an injured passenger. In such circumstances the driver of the borrowed car is at least potentially a defendant in the car owner’s suit for property damages and in the passenger’s suit for personal injury. In the present case, W as the driver has been brought into the action as a third party defendant, thus becoming formally aligned in opposition to the attorney’s other clients, H in his own behalf, and H as a representative of the estate of the passenger. The opposition of H & W could become substantive as well as formal. An attorney representing W could well advise his client, not only to defend on the grounds of lack of negligence, but to defend by attacking H’s proof of damages and the damages sought to be proved on behalf of the child’s estate.

Multiple representation in situations like this has in the past been approved and disapproved with little apparent regard for general principles. ABA Informal Opinion 723 disapproved representation of driver and passenger unless there was no possible liability of driver to passenger. Otherwise, the opinion would not have allowed dual representation even with consent, and the Committee noted that in any case it would be better that the same attorney not represent both parties. N.Y. State Opinion 349 expressed similar views. On the other side of the issue, for example, was Opinion 198 of the Michigan Bar Association dated November, 1963.

Prior to adoption of the ABA Code of Professional Responsibility it was the general rule that consent by an informed client would permit the representation of differing interests. Now the rule, in Maine, and nearly everywhere else, is that consent will not sanction multiple employment unless it is obvious that the attorney can adequately represent the interests of each client. As the Reporter’s Notes to Rule 3.4(b) express it, “if his capability [to provide adequate representation for each client with a differing interest] requires substantial explanation the condition cannot be met.”

It is suggested that in the present case, there is no conflict of interest because clients H & W agree on the strategy to be followed by the attorney and agree that the driver of the other car, not W, was at fault. This, however, merely seeks to explain why H & W consent to multiple employment. This consent does not make it obvious that the same attorney can represent passenger and driver in the present case. Since consent alone will not remove the bar to representation of differing interests, the desire of the parties that their interests not conflict and their wish to avoid conflict will not do so when it is not otherwise obvious that each party will be represented adequately. In the present case it is not obvious, since the key issue of W’s potential liability cannot be resolved on the facts available to the Commission and would require “substantial explanation” in any event.

It is not material that H and W are the sole heirs of the deceased minor. They are still potentially adverse as to one‑half of the minor’s estate. Nor is it material that they are uninsured.[1] We do not know what assets might eventually become available to satisfy a judgment against W.


Footnote

[1] Cf. M.S.B.A. Opinion No. 40 of 4/14/73 in which an insurance company, the real party in interest in owner’s suit against driver of the other car, was assumed to be the liability carrier, obliged as such to defend a third party complaint against the owner’s son, who was driving his car. Since there was but one interested party, the insurance company, the opinion held that the same attorney could represent the plaintiff owner and the third party defendant driver.


Enduring Ethics Opinion