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                                         103 N.J.L.J. 513
                                        May 31, 1979

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 427

Conflict of Interest
Defending Motor Vehicle Defendant
Then Suing Defendant Civilly

    An attorney was retained by the parents of a young woman who was involved in a two-car accident while driving a car owned by her mother to represent her in the municipal court on a charge of failure to yield in violation of N.J.S.A. 39:4-90. After consultation with the father and the daughter, it was decided that the daughter should appear on her own behalf in municipal court and plead not guilty. She did so, was convicted and fined and the fine was paid. The attorney was then asked by the father to appeal the conviction which he did. The appeal resulted in a finding of not guilty after a de novo hearing on the record in the county court. The attorney was then asked to instate an action to recover damages to the automobile. He advised the parents that the best course of action was to bring suit against both the driver of the other automobile and the daughter. The suit was started and is now pending. The attorney now wishes to know whether he can properly continue to represent the mother-owner of the automobile in this proceeding. As of the date of his inquiry no other pleadings had been filed and no one has raised any question as to the propriety of his representation of the mother.

    In our opinion this representation is improper. In his representation of the daughter on the appeal of the motor vehicle violation conviction, the attorney was obligated to use his best efforts to persuade the court that the daughter did not commit the violation with which she was charged. In his prosecution of the suit for damages against the daughter and the driver of the other car, the attorney will be obligated to take precisely the opposite position; namely that the daughter's negligence, an element of which would doubtless be the failure to yield, was a contributing factor to the accident. The proper administration of justice cannot tolerate a lawyer taking these diametrically opposite positions in the same matter. See ABA Comm. on Professional Ethics, Informal Decision C-753 (1964).

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