Not infrequently, both the driver and passenger(s) involved in a motor vehicle crash will consider hiring the same personal injury lawyer. Because of conflict of interest concerns, lawyers must be exceedingly cautious in taking on dual representation in these circumstances. The concerns arise in various fact situations, including the following:
1. The driver and passenger prospective clients are both injured and liability isclearly with the third party driver. There are no claims of comparative negligenceor fault against the plaintiff driver.2. The driver and passenger prospective clients are both injured and liability liesmostly with the third party driver. However, the third party’s insurance companyis alleging comparative fault by the plaintiff driver.3. Driver and passenger prospective clients are members of the same family andboth are injured in an auto accident. While the plaintiff driver may have beenpartly at fault, the driver was uninsured and has no assets to satisfy an adversejudgment.4. The driver and passenger prospective clients are both injured and evidenceshows that the plaintiff driver was definitely at fault as well as the third partydriver of the other vehicle.5. The driver and passengers, who are members of the same immediate family,are all injured and the third party tortfeasor is claiming some fault on the partof the driver. The driver is the wife/mother of the passengers. Her liability policyhas denied coverage for the other family members due to a “family exclusion”clause in the policy; she has no significant assets. The driver has uninsured/underinsured motorist coverage.
Even without fault on the part of the driver, which can be difficult to determine with certainty, issues related to damages and insurance coverage limits may make dual representation improper. Limits as to amounts of available liability and uninsured/underinsured insurance can create conflict among those seeking to be compensated for their damages. If there is not sufficient funding to cover the injuries of all the plaintiffs, one attorney may represent all the parties, with their knowing consent and waiver of conflict, only if all the plaintiffs are able to agree regarding the distribution of benefits/recovery among themselves. Rule 4 -1.7(a)(1) and (2), Florida Rules of Professional Conduct. If each plaintiff is advised independently, this assures that waivers of conflict are knowing and informed as required by Rule 4-1.7(a)(1) and (2).
Where the third party tortfeasor is making a claim against the driver of a vehicle in which passengers were injured, even if not formal in the sense of a lawsuit, and this claim is based upon valid objective evidence, one attorney cannot represent both driver and passenger(s). What often occurs during negotiations is that the tortfeasor’s insurance adjuster will claim comparative fault against the driver. If the claim is based on valid objective evidence, the adjuster’s position pits passenger(s) against driver to make up for the reduction resulting from the driver’s percentage of fault, placing the lawyer in the untenable position of having to advocate for one client against another. This principle also precludes dual representation in a one car accident where there is evidence of negligence by the driver. A conflict exists under Rule 4-1.7(a) and (b), Florida Rules of Professional Conduct and Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993)
This scenario may be the only exception to the conclusion in Scenario 2. When passenger and driver are members of the same family and the driver is uninsured, multiple representation should be okay. While comparative fault precepts — see Fla. Stat. Sec. 768.81 — may come into play to reduce the passenger’s recovery, Florida law extending parental and spousal immunity for damages above liability insurance coverage limits eliminates the conflict of pitting one client’s interests against another’s. See Ard v. Ard, 414 So.2d 1066 (Fla. 1982).
It gets a little stickier when the occupants are family members but are not in the category of those subject to the immunity laws. Technically, at least, such passengers could seek a recovery from the driver’s personal assets and income. Interestingly, in Ethics Opinion 02-3 the Florida Bar gave the okay to dual representation in this circumstance, adopting language set forth in Oregon Ethics Opinion 2000-158:
There may be situations in which allegations of contributory negligence do not create an actual conflict. The passengers may disagree with the adverse driver’s factual contentions. If the driver and the passengers are closely related, the passengers may not wish to pursue intra-family claims. Assuming that these decisions not to pursue claims are made voluntarily and without influence arising from the lawyer’s obligations to the driver, there is no actual conflict between the clients.
Even still, the Florida Bar advises that “the situation must be one in which an independent attorney would determine that it is not worthwhile or appropriate to sue the driver because there is no legal or economic basis for a claim under the circumstances,” — “the same conclusion would be reached if the third party tortfeasor’s claim against the driver is bogus and without substantiation in fact” — and that knowing consents and waivers must be obtained from all parties. (It may be better practice for the parties to be given the opportunity to consult with independent counsel before waiving an actual conflict.)
Under these circumstances one attorney cannot represent both driver and passengers, even with the consent of the clients involved. Rule 4-1.7(a) and Comment; Mastrilli, supra.; Texas Ethics Opinion 500, Oregon Ethics Opinion 2000-158.
Similar response as in Scenario 3. One attorney can one attorney can represent all parties against the driver’s uninsured/underinsured motorist policy and against the tortfeasor if the situation is such that an independent attorney would determine that it is not worthwhile or appropriate to sue the driver because there is no legal or economic basis for a claim under the circumstances. Comment to Rule 4-1.7. The same result would obtain if the tortfeasor’s claim against the driver is bogus and without substantiation in fact. Oregon Ethics Opinion 2000-158, supra.
Here’s what the Florida Bar has to say about when when conflict determinative facts do not come to light until after an attorney has already begun to represent both driver and passengers:
[R]emedial measures may be required. If discovery reveals, for example, that a non-waivable conflict exists between co-clients, the attorney may be required to withdraw from representation of both driver and passengers because of the direct conflict between them. Rule 4-1.7(a); Rule 4-1.16(a) and (d), Florida Rules of Professional Conduct; Florida Ethics Opinion 95-4. Even if the attorney had only brief meetings with both driver and passengers, representation may be deemed to have begun under pertinent caselaw. In Florida, a prospective client’s subjective belief that his or her meeting with an attorney (in person or by telephone) was a meeting seeking and receiving legal advice, may create an attorney client relationship, if the client’s belief was reasonable. Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992), review dismissed, 618 So.2d 208 (Fla.1993). The test is not whether a fee was paid or an engagement agreement signed, but whether the client reasonably believed that he or she was consulting an attorney seeking legal advice. Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996).
The scenarios discussed arise often in busy personal injury law firms. As breaches can be consequential to clients and lawyers alike, lawyers and staff must be on high alert to the various issues. When in doubt, lawyers should refuse providing dual representation.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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