LEO 1310

LEO: Confidentiality - Multiple Representation LE Op. 1310

Confidentiality - Multiple Representation - Personal Injury: Attorney

Representing Insurance Carrier in Personal Injury Claim Filed by

Employee/Driver Under Employer's Uninsured Motorist Provision

When Attorney Earlier Represented Employer/Insured in Liability

Matter.

November 16, 1990

You advised that you were retained by insurance company to represent

their named insured, defendant, who had been sued for damages to plaintiff

as a result of an automobile accident involving defendant's employee and

phantom driver, John Doe (defendant/insured was the owner of the vehicle

but his employee was the driver of the vehicle). You advised that while

you did not represent employee in this action as he was not a party, he

was the key witness on the issue of liability along with a state trooper

who testified as to the length of the skid marks and damage. You indicate

that your defense in the instant matter was that employee was not

negligent. Employee testified that he had done nothing wrong but had been

approached by a phantom vehicle (John Doe) who forced him out of the

roadway. The general district court judge, however, concluded that the

amount of the damages, the length of the skid marks and the surrounding

circumstances led to a finding that employee was negligent, regardless of

whether John Doe was partially negligent also. A judgment was obtained

against defendant/insured based upon imputed negligence.

Approximately two years later, employee/driver brought an action for

personal injuries against phantom driver, John Doe, and insurance company

employed your services to defend the uninsured motorist case. You indicate

that your defense in the second action was that employee was barred based

upon res judicata and/or collateral estoppel. You have alleged that you

did not gain anything from the previous representation of

defendant/insured that would have been privileged since insurance company

was privy to all information and would have passed that information to

counsel in the second case.

The second matter has not been resolved and you wish to know whether

under the facts you have presented there is a potential conflict of

interest that would preclude you from continuing to represent the

insurance company in the uninsured motorist case.

The appropriate and controlling rules relative to your inquiry are DR:4-

101 and DR:5-105(D) respectively regarding preservation of clients'

confidences and secrets and representation in collateral matters which are

substantially related. In particular, DR:4-101(B) provides that a lawyer

shall not knowingly reveal a confidence or secret of his client or use the

same to the disadvantage of the client, or use the same to his own

advantage or that of a third person. Disciplinary Rule 5-105(D) also

provides that a lawyer shall not represent a person in a matter that is

the same or substantially related to a former representation if the

interests of the former client and the current client are adverse in any

material respect, unless the former client consents after full disclosure.

The Committee directs your attention to LE Op. 1142 in which the

Committee opined that it was not improper for defendant/driver 1's

attorney to also represent his client's insurance carrier (which may be

liable for any "excess" judgment under the insured's uninsured motorist

provision) where the plaintiff, passenger in vehicle operated by driver 1,

took a voluntary nonsuit in the personal injury action against driver 1.

The Committee cautioned that first the attorney must obtain the informed

consent of his former client and should be diligent not to reveal any

confidences or secrets obtained in the former representation, unless the

former client explicitly consents thereto. (See DR:4-101(C)(1))

The determination of whether an attorney-client relationship existed

between counsel and a key witness is a legal determination which is beyond

the purview of this Committee. Under the facts as you have presented them

in your inquiry, the Committee would opine that the continued

representation of insurance company in the uninsured motorist case is

ethically permissible assuming that no attorney-client relationship was

created with the plaintiff-employee in the previous action against former

client-defendant/insured. Thus, no confidential information could have

been obtained that could now be used against the former client in

derogation of DR:4-101(B). Furthermore, assuming that no attorney-client

relationship was established with plaintiff-employee in the prior

representation of defendant/insured, proscriptions in DR:5-105 would not

apply in the instant matter since the interests of the former client-

insured/defendant and the present client-insurance company presumably are

not potentially adverse.

Committee Opinion November 16, 1990

CROSS REFERENCES