ETHICS OPINION 521-1964 CONFLICT OF INTEREST

NUMBER 521

QUESTION

 

A, B and C were in an automobile which was involved in an accident. A is the driver, B is A’s son, a passenger, and C is a passenger. The only party who had any information as to the accident was A since B and C had not observed the circumstances of the accident, From A’s story, I determined that there was no question of his being contributory negligent. The other automobile was solely negligent and, therefore, I was retained by all three.

At a hearing held in the Criminal Court building to determine whether a vehicular homicide action would lie against A, the unbiased evidence of the Police Department and statements received at the scene of the accident from A established beyond any doubt in my mind that A was, at the very least, contributory negligent.

My question now is this; C, the passenger, in my opinion, has a case against both A and the driver of the other car. Would it be proper for me to continue on the case insofar as C is concerned and drop A and B, or should I drop A, B and C, after first presenting all the facts to them and recommending that they seek other legal services, or should I maintain ray case as to B, A’s son, insofar as the action he has against the driver of the other car, and just drop A’s case, and recommend to C that he retain other counsel.

 

In conclusion, I feel that even though in good faith I case for all three parties, I cannot leave the situation as it now remains, since certainly C, the passenger, should bring against the drivers of both motor vehicles.

 

ANSWER.

 

It would be improper for the lawyer to represent C because C’s claim is not only against the owner and driver of the other automobile but also against A, from whom the lawyer had obtained information while acting in a professional capacity. It would also be improper for the lawyer to represent B even though claim were made solely against the owner and driver of the other automobile, because the latter undoubtedly would claim over against A. If the lawyers should endeavor to minimize A’s liability, that would be detrimental, to C’s claim against A.

 

It would not be proper for the lawyer to represent A, as the conflicting claims of his clients B and C almost certainly would be involved in the action, either by consolidation or otherwise

 

In the circumstances, it is the opinion of the Committee that the lawyer should withdraw from the case entirely

 

January 17, 1964