LEO 1142

LEO: Personal Injury Representation LE Op. 1142

Personal Injury Representation - Confidentiality - Conflicts of

Interest - Disclosure - Multiple Representation: Representing

Insurance Carrier in Matter Substantially Related to Prior

Representation of Insured.

October 26, 1988

You have advised that your law firm has been retained by a motor vehicle

insurance carrier to represent a defendant in a personal injury action.

The action was filed by your client's daughter who was a passenger in the

vehicle belonging to and driven by her father, your client. The action was

filed against your client, and against the driver of the vehicle which

struck your client's vehicle in the rear. You have filed responsive

pleadings and have appeared on behalf of your client at depositions taken

of the parties.

Plaintiff's counsel has advised that his client intends to take a

voluntary nonsuit against your client. Plaintiff's counsel intends to

amend his pleadings to proceed against your client's insurance carrier in

the event a judgment in excess of the coverage of the remaining defendant

is rendered, pursuant to the "uninsured motorist" provision in your

client's insurance policy.

You wish to know whether your law firm may ethically represent the

insurance carrier's interest in this matter subsequent to a nonsuit being

taken against your current client.

Disciplinary Rule 5-105(D) [ DR:5-105] provides that a lawyer shall not

represent one client and thereafter represent another client in the same

or substantially related matter if the interest of the latter client is

adverse in any material respect to that of the former client, except with

the former client's consent.

Disciplinary Rule 4-101(A) [ DR:4-101] and (B) provide that a lawyer

shall preserve the confidences and secrets of a client obtained through

the attorney-client relationship and that he shall not use a confidence or

secret to the disadvantage of his client or for the advantage of another,

unless he receives the client's consent.

Under the limited facts presented in your inquiry, the Committee opines

it is not improper for your law firm to represent your client's insurance

carrier provided that you receive the consent of your former client after

full disclosure under the circumstances, pursuant to DR:5-105(D). In

this situation the attorney should be extremely mindful not to reveal any

confidences or secrets obtained in the previous employment of his former

client, unless the former client explicitly consents thereto, pursuant to

DR:4-101.

Committee Opinion October 26, 1988

CROSS REFERENCES