100 N.J.L.J. 646
July 21, 1977
Conflict of Interest
Suing For Husband-Driver and
Wife-Passenger-Also Child Victim
An attorney has been asked to represent a husband-driver and
the wife-passenger in an automobile negligence case against a third
person where it appears that the liability resides substantially with the third person. In addition, the husband-driver also sues as administrator or ad prosequendum and general administrator of the infant child of the couple who was killed in the accident.
The inquirer informs us that there is a possibility that the wife-passenger might recover a judgment in excess of the policy limit of the defendant but that she does not wish to have separate counsel and in no case is willing to assert a claim against her husband. The inquirer further proposes that the wife ought to be substituted as the representative of the estate of the deceased child. A counterclaim for contribution has been filed by the defendant against the husband-driver.
Under all the circumstances it should not be necessary for the wife to have a separate attorney. Opinions 156, 92 N.J.L.J. 481 (1969); 188, 93 N.J.L.J. 789 (1970); 248, 96 N.J.L.J. 93 (1973) and 253, 96 N.J.L.J. 449 (1973) permit exceptions to the general proscription of multiple employment exactly to the extent allowed under DR 5-105(c). The parties in the given situation are adults, capable of making an intelligent and informed judgment on the basis of the "full disclosure of the facts and of the possible effect of such representation."
As to the representation of the estate of the deceased child, we think it appropriate to leave this matter to the court. It may be that the court will feel that an independent representative should be designated, and that person would, of course, be free to select counsel of his own choosing. This committee feels obliged to defer the matter to judicial attention.