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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-15

After noticing depositions in a personal injury action, plaintiff's counsel discovered that a defendant's insurer was his retainer client. He immediately withdrew as plaintiff's attorney. Later he concluded that the depositions had established the non-liability of the particular defendant and its insurer. Plaintiff wishes to again retain him. He may not accept the retainer because his non-liability conclusion may not have been independently arrived at.

QUESTION:

An attorney filed a personal injury suit on behalf of the plaintiff against the plaintiff's insurance company, the hospital that employed the plaintiff and the insurance carrier for the hospital. He noticed depositions in the case and then discovered that he also represented the insurance carrier for the hospital. He immediately withdrew from the case. However, he thereafter took the depositions he had noticed, on the basis of which he has concluded that neither the hospital nor its insurance carrier could possibly be liable to the plaintiff. As a result, he now wants to get back into the case as the plaintiff's attorney. May he properly do so?

OPINION
He may not.

According to the question, the attorney withdrew from this case immediately upon discovering his multiple representation. He nevertheless continued to participate in the case by taking depositions. The question therefore may be more a matter of the propriety of his remaining in the case than of re-entering it.

In either event, the rule is clear that an attorney should refuse to accept or continue his employment by a client if the interests of another client might possibly impair his independent professional judgment. Disciplinary Rule DR 5-105 of the American Bar Association's Code of Professional Responsibility provides as follows:

"(A) A lawyer shall decline proffered employment if the exercise of his 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).

"(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).

" (C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."

Rules 5, 6 and 7 of the Rules of Professional Conduct of the State Bar of California deal with the matters of multiple representation and conflicting interests in terms of consent and disclosure. They provide as follows:

"Rule 5. Acceptance of employment adverse to client or former client. A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.

"Rule 6. Disclosure of relation with adverse party and of interest in subject matter. A member of the State Bar shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of the employment.

"Rule 7. Representation of conflicting interests. A member of the State Bar shall not represent conflicting interest, except with the consent of all parties concerned."

But the mere consent of both clients does not in itself justify multiple representation in all cases. The question is whether the lawyer's independent professional judgment might possibly be impaired by the employment in question, or whether that employment might possibly dilute his loyalty to a client. The lawyer must weigh such matters carefully, and should resolve all doubts against the propriety of the multiple representation. See ABA Code of Professional Responsiblity, Canon 5, Ethical Considerations EC 5-14 and EC 5-15.

The lawyer in this instance has now concluded that neither the hospital nor its insurance carrier could possibly be liable to the plaintiff. It must be assumed, however, that there was some legal basis for his original decision to name them, as defendants in the case. Although we do not suggest that it is the fact, the situation is one in which the lawyer's independent professional judgment could be affected by his connection with both sides of the case. Hence, as long as the hospital and its insurance carrier remain in the litigation, the lawyer should resolve any doubt by declining his further representation of the plaintiff.

The consent of both clients to the lawyer's continued participation would not in our opinion alter the result. A question would remain as to whether the plaintiff had received a fully independent evaluation prior to giving such consent. An appearance of possible impropriety would thus remain, leaving a doubt that must be resolved against the possible conflict.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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