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96 N.J.L.J. 93ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
January 25, 1973
Appointed by the New Jersey Supreme Court
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
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) 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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