LEO: Multiple Representation - Personal  LE Op. 1223


Multiple Representation - Personal Injury: Attorney Representing

Driver and Passengers in Automobile Accident as a Result of

Defect in Trailer Hitch and Representing Insurance Carrier in

Subrogation Claim.


April 19, 1989


FACTS: Attorney X represents Client A, the driver of a vehicle involved

in a motor vehicle accident in which two friends, B and C, were

passengers. Earlier, Client A had purchased a trailer hitch and travel

trailer from Vendor M. Subsequent to the purchase, while A, B and C

proceeded downhill on an interstate, the travel trailer jackknifed and

injured A, as well as passengers B and C.


During the investigation of A's motor vehicle accident, Attorney X

interviewed B and C to determine additional facts. In the independent

talks with B and C, both passengers clearly indicated that they know knew

of nothing that A could have done which would have caused the accident. It

now appears that a product liability claim may be asserted against Vendor

M and other persons in the chain of commercial distribution. In addition,

you have indicated that Client A's insurer has requested Attorney X to

represent insurance carrier on a subrogation suit for the property damage

claim paid to A, their insured.


INQUIRY: You wish to know whether it would be appropriate for Attorney X

to represent A, B and C in a personal injury action against Vendor M and

the various persons in the chain of distribution of the products which are

believed to have caused the accident. You also ask if it would be

ethically permissible for Attorney X to represent A's insurer on a

subrogation claim against Vendor M and the various persons in the chain of

distribution of the products purported to have caused the accident.


OPINION: The Committee would direct your attention to DR:5-105(C),

which provides that a lawyer may represent multiple clients if each

consents to the multiple representation after full disclosure of the

possible effect of such representation on the exercise of the attorney's

independent professional judgment on behalf of each. Ethical Consideration

5-16 provides that it is essential that each client be given the

opportunity to evaluate his need for representation free of any potential

conflict and to obtain other counsel if he so desires. Thus, an attorney

should explain fully the implications of the common representation,

including circumstances that might cause any of the multiple clients to

question the attorney's undivided loyalty. Only upon obtaining the

informed consent of each client may he then accept or continue employment.


The Committee has previously opined in LE Op. 218 and LE Op. 620 that

the multiple representation of driver and passenger is ethically

permissible, even where client/driver may have been at fault, provided the

attorney was convinced that he may adequately represent the interest of

each and if each client consents to the representation after full and

adequate disclosure of the effect on the attorney's independent

professional judgment on behalf of each.


It is the opinion of the Committee that if Attorney X can provide

obviously adequate representation for Passengers B and C, as well as for

Driver A, it would not be improper for him to represent all three in the

product liability action after having received consent from each following

full and adequate disclosure under the circumstances. The continued role

of Attorney X must be re-evaluated, of course, should the situation change

and one or both passengers indicate the desire to assert a claim against

the driver or should the Vendor or others in the chain of commercial

distribution assert a claim against driver.


With regard to Attorney X's representation of the insurance carrier, the

Committee would direct your attention to LE Op. 213 and LE Op. 360, in

which the Committee previously opined that it is ethically permissible for

an attorney to represent an insured and at the same time represent the

insured's insurance carrier against a third party under the subrogation

provisions of the insurance contract, assuming that consent from the

insurer and the insured has been given after full and adequate disclosure. (

See DR:5-105(C))


Committee Opinion April 19, 1989




See also LE Op. 1354.