Rutgers School of Law, OAL case ACPE248

96 N.J.L.J. 93
January 25, 1973

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 248

Conflict of Interest
Representing Drive and Passenger

    Two inquiries have been submitted asking whether an attorney can represent husband and wife, or parent and child against another driver where it is stated that liability is undisputed.
    In the first case, a firm of attorneys has asked whether it could represent both the driver-mother and her passenger children in one suit against the owner and driver of another motor vehicle involved in a rear-end collision, provided a waiver and consent are executed. The mother was driving her automobile with two of her infant children as passengers. Her car was stopped in a line of traffic by a red light when a bus whose brakes had failed collided into the rear of her vehicle. Both mother and children and the father as guardian ad litem now desire to bring a single action against the driver and owner of the motor bus for personal injuries sustained and property damage incurred. Can the attorney represent both mother and children?
    In the second case, a husband and wife were involved in an accident as passengers in an automobile which was involved in a head-on collision. It is asserted that the liability against the other driver is absolute. Can one attorney represent both the husband and his wife?

    In two recent opinions, our Supreme Court discarded the doctrine of interspousal and parent and child immunity. Immer v. Risko, 56 N.J. 482 (1970), France v. A.P.A. Transport Corp., 56 N.J. 500 (1970). This Committee had previously considered similar situations and we held that it would be improper to represent both the driver and passengers notwithstanding consent. Opinion 156, 92 N.J.L.J. 481 (1969), and Opinion 188, 93 N.J.L.J. 789 (1970).
    On October 8, 1970 our Supreme Court issued the following directive (93 N.J.L.J. 712): "Until further order of the Supreme Court, the policy statement with reference to the representation of driver and passenger will not apply with respect to husband and wife or parent and child. The problem of common representation in
such situations will depend upon the circumstances of each case."
    In both cases submitted, we assume liability to be undisputed. There appears no logical reason why one attorney cannot institute a single suit to recover on behalf of the driver and the passenger or on behalf of both passengers. However, if it appears that there is insufficient or inadequate insurance coverage by the negligent driver to permit full payment to both plaintiffs, an attorney should reconsider his representation of both. Otherwise, he may be
compromising the interests of one of the plaintiffs to the advantage of the other, while endeavoring to settle both claims at one time.
    DR 5-105 (B) and (C) of the new Disciplinary Rules of Professional Responsibility provide as follows:

    (B)    A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client 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).

    (C)    In the situations covered by DR 5-105(A) and (B) except as prohibited by rule, opinion, directive or statute, a lawyer may represent multiple clients if he believes that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the facts and of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

    Where there is an infant represented by a guardian, an attorney must be vigilant to protect the interests of the child and he should not be placed in a position where he cannot secure the maximum settlement for the infant.
    With the caveat outlined above, it is our opinion that one attorney may represent both the husband and wife or parent and child under such facts only where the liability is obvious.

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