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
Committee Opinion October 26, 1988
See also LE Op. 1310, and LE Op. 1410.