Ethics Opinion

Opinion No. 79-8

August 1979

Summary: An automobile insurance company accepts the defense of an action for personal injuries against a master, based upon the negligence of the insured policyholder. This policyholder was alleged to be a servant acting in the course and scope of his employment by the master. If the defense attorney never previously represented the servant or his estate, he may properly file a third-party complaint against the servant on behalf of the master, without the consent of the insured.

Facts: Suit has been brought by P against M, alleging that M's servant S (in the course and scope of his employment) drove S's automobile negligently and injured P. S was killed in the accident. M tendered defense of the case to S's automobile liability insurer I. I accepted the tender and hired C as defense counsel.
After discovery, M asked C to file a third-party complaint against S's estate, which had not previously been a party. C refused, claiming that to do so would involve him in a conflict of interest. C, however, has never had an attorney-client relationship with S or his estate.
The committee has been informed that the suit is in Massachusetts and that the standard insurance policy provisions in force in 1975 apply to it. We have been asked whether C represents S's estate in a way that would bar him from filing M's third-party complaint against S's estate.

Discussion: C was not hired to act as attorney for S's estate. S's estate was not a party to the action. Rather, C was to defend M. Any judgment against M, as S's master based upon S's liability, would (under the terms of the policy) eventually have to be paid by S's insurer I, up to the policy limits.
It is not relevant whether I had the right and duty under the policy to provide counsel, at its expense, to defend M. M asked I to do so, and I consented to retain C to defend M. This did not make I, S, or S's estate a client of C's, although it was for I to decide what amounts to pay to P by way of voluntary settlement. There is, therefore, no appearance of impropriety or conflict of interest if C brings a third-party complaint on behalf of M against S's estate.

Permission to publish granted by the Board of Delegates, 1979. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.