92 N.J.L.J. 481
July 24, 1969
Conflict of Interest
Representing Driver and Passenger
A request has been made to interpret the applicability of a
Supreme Court directive regarding a potential conflict of interest
where an attorney represents both driver and passenger in an
automobile negligence case.
The Supreme Court directive, set forth at 91 N.J.L.J. 81 (February 8, 1968) provides as follows:
The Supreme Court is of the view, because of the conflict of interest inherent in the situation, that an attorney should not represent both the driver of a car and his passenger in an action against the driver of another car, unless there is a legal bar to the passenger suing his own driver, as for example, where they are husband and wife, unemancipated child and parent, or employees of the same employer and the accident occurred in course of their employment. Where an attorney does represent both a driver and his passenger and no such legal bar exists, if a crossclaim or counterclaim is made by the other driver, a conflict of interest arises and the Supreme Court has advised the Assignment Judges that the attorney should not be permitted to continue to represent either the driver or his passenger.
An attorney who has represented a family for a long period of time inquires whether he may represent the driver and all passengers where suit is instituted involving these facts:
Mr. X is the driver of the vehicle in which his infant daughter, her infant friend, and his adult sister are passengers. He is driving in a southerly direction on a four-lane divided highway. On that highway the two southbound lanes are separated from the two northbound lanes by a two-foot high divider and in some instances also a grassy island. While proceeding at a normal rate of speed in the right-hand (slow) southbound lane, the X vehicle is struck by the vehicle of Mr. Y which had been proceeding in a northerly direction and had suddenly crashed into, along and then eventually over the dividing barrier into the further northbound lane. Serious injuries were sustained by all persons in the X vehicle. Police investigation, including police interrogation of disinterested eyewitnesses concludes that Y was solely responsible for the accident and that in fact there were traces of alcohol on Y's breath. The accident happened so quickly that it was impossible for Mr. X, or any reasonably prudent person, to have avoided collision with the Y vehicle. Under these facts there obviously can be no valid or legal claim against Mr. X and none of the passengers in the X vehicle either desires or intends to make any claim of any kind against Mr. X.
We deem it improper for the attorney to represent both the driver and his daughter's friend and his sister even if a frivolous counterclaim for contribution against the plaintiff's driver should be made by Y's carrier. This does not apply, however, to the driver's infant daughter.
The difficulty presented is whether the attorney should judge the issue of negligence or whether a counterclaim would be frivolous. Conceivably, there may be situations where the attorney's opinion as to a "frivolous claim" would be in error. The facts may not always be as clear as those presented.
Prudence dictates that the attorney should not appear for both driver and his daughter's infant friend or adult sister. There is no legal bar to suit by these passengers against their own driver (see Supreme Court directive, supra). The rule may be different, however, in the case of the driver's infant daughter. The relationship of parent and unemancipated child brings into effect the Supreme Court directive, supra, and the rule laid down in Hastings v. Hastings, 33 N.J. 247 (1960), where Justice Ha11 said (at p. 253):
The possibility of collusion, and the corollary of breakdown of most desirable individual integrity within the family frequently involving children as well is so great in so many cases of the kind before us that we feel constrained to conclude, in conjunction with the other considerations previously mentioned, that sound public policy precludes their prosecution [i.e., between father and unemancipated minor child].
The conclusion herein stated will reinforce and not dilute or alter the Supreme Court directive quoted above.