113 N.J.L.J. 384
April 5, 1984
Conflict of Interest
Dual Representation of Defendant,
Physician, and Defendant Hospital
The inquirer, "an attorney in the State of New Jersey engaged
in the practice of law representing plaintiffs in medical
malpractice cases" presents the following question:
Whether the same law firm may represent both defendant physician and defendant hospital in a medical malpractice case without violating DR 5-105.
In presenting the inquiry he states:
In many cases with which I have been concerned
the same law firm has represented both
defendant physician and defendant hospital,
and/or two or more physicians, during
settlement negotiations and litigation. The
ethical problem exists when one defendant has
contribution rights against the other
defendants, or has knowledge of malpractice
that could lead to an early settlement, which
is not disclosed during discovery on advice of
He submits further:
... that when an attorney represents both
defendants who may have contribution rights
against each other, a conflict of interest
exists much like the situation where the same
firm represents both the driver and passenger
in an automobile accident. Furthermore, the
attorney may become privy to information which
verifies the rights of one defendant against
the other, or information which, while
exculpating one defendant completely,
inculpates the other. In the former situation
there is a clear conflict; in the latter, an
apparent conflict because the attorney may not
advise the client to disclose such information
without violating DR 4-101 with regard to the
He, therefore, submits that the foregoing would constitute unethical conduct in violation of DR 5-105.
DR 5-105 is captioned as follows:
Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
The Disciplinary Rule contains four subdivisions, Paragraphs (A) through (D). We are primarily concerned with Paragraphs (A) and (B), and the extent to which (C) is an exception thereto.
Paragraph (A) is a prohibition against accepting employment "if the exercise of an attorney's independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105 (C)."
Paragraph (B) provides that a lawyer shall not continue multiple employment under the same conditions; namely, if the attorney's 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).
We, therefore, look to Paragraph (C) to determine whether the facts and circumstances in this case, as submitted, come within the exceptions to the general rule.