I would greatly appreciate an opinion from your committee on the following state of facts:
In 1965 I was retained and commenced an action on behalf of John Doe, an infant 10 years of age, and Mary Doe, mother of John, to recover damages for serious personal injuries sustained by John and property damages sustained by Mary as a result of an automobile collision between the automobile owned and operated by Mary and an automobile owned and operated by a Mr. Roe. John was a passenger in his mother’s automobile.
The law in 1965 did not permit an action by an unemancipated infant against his parent for the parent’s negligence. The law has now been changed by the Court of Appeals in the case of Gelbman v. Gelbman decided January 9, 1969, which decision was published in the New York Law Journal of January 14, 1969.
The injuries of John are serious and for the proper protection of his rights his mother Mary should now be made a co-defendant with defendant, Roe.
May I now with ethical propriety discontinue the existing action of John Doe and Mary Doe gainst Roe and commence a new action on behalf of the infant against Mary Doe and Roe.
If such a new action is not permissible, how then can the infant’s rights now be properly protected.
Canon 6 of the Canons of Professional Ethics provides: “The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” Canon 37 further states that it is the duty of a lawyer to preserve his client’s confidences.
Consequently in the opinion of the Committee it would be a violation of these Canons for the inquirer to discontinue the existing action of John Doe and Mary Doe against Roe, in which he represented the plaintiffs John Doe and Mary Doe, and to commence a new action on behalf of John Doe against Roe and Mary Doe, the former plaintiff. In the course of representing Mary Doe, the attorney might have acquired confidential communications which he would be required to use against his former client in the event he represented her son in a suit against her arising out of the same occurrence.
The duty of a lawyer to preserve his client’s confidences should inhibit him from accepting employment against a former client in any litigation growing out of any matter covered by prior litigation, unless the client expressly consents thereto. (See opinions 44, 157, 207, 369, 389 and 401 of this Association).
In the circumstances presented, it is the opinion of the Committee that consent by the clients would not be appropriate to resolve the dilemma presented since the consent of Mary Doe might appear collusive to the detriment of her insurer.
The described change of legal standards has created a conflict of interest between the clients which did not exist at the time they engaged the attorney to represent them, which in the opinion of the Committee, would make it improper for an attorney to continue representing John Doe and Mary Doe in this action. (See Opinion 109 of the Association of the Bar of the City of New York). It is obvious that full protection of John Doe’s rights requires the assertion of a claim against Mary Doe. Even if John Doe wished to waive his rights against Mary Doe, it is the opinion of the Committee that continued representation of both John Doe and Mary Doe would be improper (see Informal Opinion Nos. 723 and 1016 of the American Bar Association), and such a waiver would not be meaningful since John Doe is an infant.
It is the opinion of the Committee that these unique circumstances require that the attorney withdraw from further representation of either John Doe or Mary Doe in matters relating to the accident. Since each would have communication with the attorney in confidence, his continued representation of either would be improper. (See Opinion 711 of the Association of the Bar of the City of New York). A separate action by John Doe against Mary Doe in which each was represented by new separate counsel would not obviate the conflict since prosecution of Mary Doe’s action would require her attorney to prove her free of contributory negligence, which would be adverse to the position taken by his other client John Doe in the other suit. (Cf. Opinion 825 of The Association of the Bar of the City of New York).
The attorney should protect the interests of John Doe and of Mary Doe by informing each of his change in circumstances and advising each to obtain new separate counsel. If new counsel are not obtained within a reasonable time, the first attorney should apply to the court for permission to withdraw from the case.
May 28, 1969.