You have presented a hypothetical situation in which Attorney A has
been retained by an uninsured motorist insurance carrier to defend
the carrier in an action in which the uninsured motorist
("Defendant Motorist") has appeared pro se.  Although Attorney A
has not entered an appearance on behalf of Defendant Motorist,
Defendant Motorist has consulted with Attorney A, and Attorney A
has assisted Defendant Motorist and/or given Defendant Motorist
advice in the following ways: 

     (1)  Attorney A, during the deposition of Defendant Motorist,
          raised objections of privilege on behalf of Defendant
          Motorist and advised Defendant Motorist not to answer
          certain deposition questions propounded by the plaintiff. 

     (2)  Attorney A instructed Defendant Motorist not to produce
          certain physical evidence which was requested by
          plaintiff, and which during his deposition Defendant
          Motorist had agreed to produce.  Following Attorney A's
          Defendant Motorist subsequently informed the plaintiff
          that the physical evidence would be available for
          inspection at Attorney A's office following a criminal
          hearing which is based on the same accident giving rise
          to the uninsured motorist claim.  Defendant Motorist is
          represented by separate criminal defense counsel in the
          criminal matter.

     (3)  Plaintiff filed a motion to compel discovery responses
          from Defendant Motorist. Attorney A opposed the motion on
          the basis that Defendant Motorist should not be compelled
          to produce the information requested.  Defendant Motorist
          presented no pro se opposition to the motion, and the
          motion was granted.

     (4)  Attorney A assisted Defendant Motorist in responding to
          plaintiff's interrogatories, requests for production, and
          requests for admissions, as evidenced by the fact that
          the responses were typed on Attorney A's lined pleading
          paper in Attorney A's office; interrogatories were
          notarized by Attorney A's employee; and discovery
          responses were served by mail in an envelope with
          Attorney A's name and return address label on it.

You have asked the committee to assume that the uninsured motorist
carrier has a potential future subrogation claim against Defendant
Motorist, but that Attorney A and the uninsured motorist carrier
have not informed Defendant Motorist of the possibility that the
carrier may later assert such a subrogation claim against Defendant
Motorist and have not provided Defendant Motorist with a written
waiver of any future subrogation claims.
You have asked the committee to opine, under the facts of the

     (1)  whether there is an attorney-client relationship between
          Attorney A and Defendant Motorist; 

     (2)  whether, regardless of the answer to question 1, it is
          improper for Attorney A to give legal counsel and
          guidance to Defendant Motorist when the insurance carrier
          may later assert a subrogation claim against Defendant

     (3)  whether the response to question 2 would differ if
          Defendant Motorist was provided a written waiver of the
          carrier's potential future subrogation claim, assuming
          the carrier consented to such a waiver; 

Legal Ethics Opinion #l592
Page 3

     (4)  whether it is proper for Attorney A to permit Defendant
          Motorist to continue to represent to the court that he is
          appearing pro se, if in fact, Attorney A is providing him
          legal counsel and a defense; and 

     (5)  whether, if the answer to question 1 is yes, it is
          improper for Attorney A to continue to represent either
          the insurance carrier or Defendant Motorist if the
          insurance carrier has not waived the right to pursue any
          potential future subrogation claim against the Defendant

The appropriate and controlling Disciplinary Rules related to your
inquiry are: 

     DR 1-102(A)(4) which states that a lawyer shall not engage in
     conduct involving dishonesty, fraud, deceit, or
     misrepresentation which reflects adversely on a lawyer's
     fitness to practice law; 

     DR 5-105(B) which provides that a lawyer shall not continue
     multiple employment if the exercise of his independent
     professional judgment will be or is likely to be adversely
     affected by his representation of another client, except to
     the extent permitted under DR 5-105(C); 

     DR 5-105(C) which states that a lawyer may represent multiple
     clients if 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; 

     DR 7-102(A)(3) which requires that a lawyer shall not conceal
     or knowingly fail to disclose that which he is required by law
     to reveal; 

     DR 7-103(A)(2) which prohibits a lawyer from giving advice to
     a person who is not represented by a lawyer, other than the
     advice to secure counsel, if the interests of such person are
     or have a reasonable possibility of being in conflict with the
     interests of the lawyer's client; 

     DR 7-103(B) which states that, in dealing with a person who is
     not represented by counsel, a lawyer shall not state or imply
     that the lawyer is disinterested and that he shall make
     reasonable efforts to correct any misunderstanding of the
     lawyer's role in the matter; and 

     DR 7-105(A) which provides that a lawyer shall not disregard
     or advise his client to disregard a standing rule of a
     tribunal or a ruling of a tribunal made in the course of a
     proceeding, but he may take appropriate steps in good faith to
     test the validity of such rule or ruling.  

The committee responds to your inquiries relative to the facts
presented as follows:

     1.   Once the attorney has advised the uninsured motorist, the
          committee is of the opinion that an attorney-client
          relationship has been established between Attorney A and
          Defendant Motorist.  As defined in Part Six, Section I(B)
          of the Rules of Court, the relation of attorney and
          client exists whenever one furnishes to another advice or
          service under circumstances which imply his possession
          and use of legal knowledge or skill; and specifically,
          whenever one "undertakes Oywith or without compensation,
          to prepare for another legal instruments of any
          character, other than notices or contracts incident to
          the regular course of conducting a licensed business". 
          Thus, the committee believes that by providing the advice
          and assistance to Defendant Motorist as described,
          Attorney A has established an attorney-client
          relationship.  See LEO #1127 and LEO #452.

     2.   The committee is of the view that if there are no other
          conflicts between the carrier and the defendant motorist,
          it is not improper for Attorney A to give legal counsel
          and guidance to defendant motorist even though the
          insurance carrier may later assert a subrogation claim
          against defendant motorist.  The interest of both is in
          defeating the claim of the plaintiff.

     3.   The committee believes that Defendant Motorist and the
          insurance carrier would no longer have conflicting
          interests if the insurance carrier were to give a written
          waiver of its subrogation rights.  Thus, under those
          circumstances, it would not be improper or violative of
          DR 7-103(A)(2), for Attorney A to give advice to
          Defendant Motorist.  Attorney A, however, would still
          have to comply with the requirements of DR 7-103(B);
          i.e., Attorney A could not state or imply that he is
          disinterested in the matter.

     4.   The committee believes that it would be improper for
          Attorney A to permit Defendant Motorist to continue to
          represent to the court that he is appearing pro se if
          Attorney A has advised Defendant Motorist about the
          issues in the case or matters which will be presented to
          the court. 

          Under DR 7-105(A), and indications from the courts that
          attorneys who draft pleadings for pro se clients would be
          deemed by the court to be counsel of record for the prose client, any disregard by either Attorney A or
          Defendant Motorist of a court's requirement that the
          drafter of pleadings be revealed would be violative of
          that disciplinary rule.  Such failure to disclose would
          also be violative of DR 7-102(A)(3).  Further, such
          failure to disclose Attorney A's substantial assistance,
          including the drafting of pleadings and motions, may also
          be a misrepresentation to the court and to opposing
          counsel and, therefore, violative of DR 1-102(A)(4).  The
          committee cautions that Attorney A may wish to obtain
          Defendant Motorist's assurance that he will disclose A's
          assistance to the court and adverse counsel.  See LEO
          #1127; Association of the Bar of the City of New York
          Opinion 1987-2 (3/23/87), ABA/BNA Law. Man. on Prof.
          Conduct, 901:6404.

     5.   For the same reason set forth in #2 above, it is not
          improper for Attorney A to represent the carrier and the

[DRs 1-102(A)(4), 5-105(B) & (C), 7-102(A)(3), 7-103(A)(2) & (B),
7-105(A); LEOs #452, 1127, 1172; ABA/BNA 901:6406]

Committee Opinion
September 14, 1994