Malpractice ‘Traps’ Excerpt: Representing Operator and Passengers After Auto Accident

Thursday, Jan. 28, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. We invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.


A common conflict of interest arises in auto accident cases when an attorney is requested to represent as plaintiffs both the injured operator of a car and the car’s injured passengers. See, e.g., Matter of Glassman, 25 Mass. Att’y Disc. R. 224 (2009). Because, ordinarily, the passengers are zero percent at fault and can recover from the operator if the operator is even one percent at fault, the interests of passenger and operator may well be adverse. Also, the operator of the second car may implead the injured operator of the first car for contribution on the passengers’ claims even if the passengers do not want to sue their operator directly. This could result in disqualifying the attorney from representing both the operator and the passengers. Furthermore, an attorney can jeopardize all recoveries if the attorney inadvertently permits the insured operator to breach the cooperation clause of the operator’s insurance policy.