Ethics Opinion

Opinion No. 80-10

October 1980

Summary: An attorney may not properly sue an individual person for personal injuries arising out of an automobile accident, while he is simultaneously representing that person in another lawsuit, even though the accidents giving rise to the two lawsuits are unrelated. If the attorney has already commenced suit against the client he is simultaneously representing, he cannot cure his improper conduct by obtaining consent, after full disclosure, from both clients, since it is not obvious from the facts stated that he can adequately represent the interests of both. The attorney is not obligated to keep his first client; however, he may not drop C-1's claim and keep C-2, since acceptance of C-2's claim was a violation of DR 5-105(A). The atttorney may refer C-2's claim to another attorney; however, he may not receive a referral fee, because DR 5-105(A) and (C) preclude him from keeping C-2's case.

Facts: An attorney brings suit on behalf of a client, C-1, as an operator of a motor vehicle who was struck and injured by the operator of another motor vehicle. Approximately one year later, C-1 is operating his motor vehicle with his girlfriend as a passenger and is involved in another automobile accident. C-1 and his girlfriend consult the attorney, and the attorney states that it appears from the facts that C-1 and the other operator were both negligent. The girlfriend "wishes to recover from the liability insurers of both" C-1 and the other operator. Accordingly, the attorney files suit on behalf of the girlfriend, C-2, against the other operator and C-1.
The attorney inquires as to whether he may properly represent C-2 in her suit against C-1's insurer (naming C-1 as defendant) since he states that the suit is against the insurance company as the "true" defendant. The committee assumes that the liability insurance coverage available to C-1 is such that there is no reasonable likelihood that the claim of C-2 will exceed C-1's coverage and that there are no coverage defenses which may or can be asserted.
The attorney further inquires that assuming suit has been filed on behalf of C-2 and such action is inappropriate, may he refer to another firm or return to the client either case or is he obligated to stick with C-1 since he came first. Finally, if both C-1 and C-2 consent to the representation of both in the circumstances described, does this consent obviate any problems regarding conflict of interest.
Discussion: (1) The committee has previously expressed the view that an attorney cannot properly represent an individual person and sue that individual in the absence of consent, even if the two suits were unrelated. See MBA Opinion No. 75-7. The committee has also previously expressed the view that when an attorney is retained by a casualty insurance company to represent an insured, the attorney is in fact representing not only the insurance company's interest in defeating the plaintiff's claim, but also is representing the insured. See MBA Opinion No. 77-16. Similarly, in this situation, the actual conflict of interest present when an attorney representing an individual sues his client is not obviated by the fact that insurance exists for the claim of the second client. Plainly, in the absence of consent, an attorney may never simultaneously represent a natural person in one tort suit and simultaneously bring a claim against him, even if the two accidents are unrelated. See Grievance Committee v. Rottner, 152 Conn. 59, 203 A.2d 82 (1964).
(2) A closer question is presented by the third question, whether after full disclosure and consent the attorney may properly represent both C-1 and C-2. Initially, the committee notes that not only would the consent of C-1 and C-2 be needed, after full disclosure, but also the consent of the liability insurer for C-1. See MBA Opinion No. 77-6. (An attorney who has represented a child and her mother in proceedings before the Registry of Motor Vehicles may not properly thereafter represent the child in an action against her mother without the consent of the child, her mother, and her mother's insurer.) DR 5-105(C) permits representation of 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 of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." (Emphasis added.) In this case the facts do not indicate that it is "obvious" that the attorney can "adequately" represent the interest of each. Without being all inclusive, for example, it is possible that the attorney may have learned in representing C-1 in the first accident that he is a poor driver or drives under the influence of alcohol. While such information could be quite useful in prosecuting C-2's claim, it is not "obvious" that the attorney could "adequately" represent the interests of C-1 in using such information in prosecuting C-2's claim. On the other hand, failure to use such information would mean the attorney was not adequately representing the interests of C-2.
(3) The committee has assumed with respect to the second accident that both C-1 and C-2 provided information to the attorney in a joint interview. If this is not the case, then the attorney would be obligated to maintain the confidences and secrets of each under Canon 4 and, depending upon what had been disclosed by either C-1 or C-2, then the attorney could be disqualified from representing either in both lawsuits.
In any event the previous discussion indicates that it was a violation of DR 5-l05(A) for the attorney to have accepted C-2's case. Since the attorney is required to withdraw from one of the cases, in the spirit of DR 5-105(A) he should withdraw from C-2's case. Since the attorney is disqualified from representing C-2 by reason of the conflict rules, he should not take any referral fee in connection with C-2's matter.

Permission to publish granted by the Board of Delegates, 1980. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.