Ethics Opinion

Opinion No. 80-2

February 1980

Summary: If two defendants in a civil rights action (a city and one of its police officers) have differing interests, the same lawyer may not represent both, even if both clients consent, after full disclosure. When the parties' interest in the litigation is the same, however, one lawyer may represent both, if they consent after full disclosure.

Facts: A city solicitor has been requested to defend both the city and one of its police officers in a federal civil rights action. The litigation arises out of an assault and battery allegedly committed in the course of an arrest. Under G.L. c. 258, S 2, the city must indemnify the officer, if he acted in the scope of his employment. On the other hand, G.L. c. 258, S 9, precludes such indemnification in a civil rights case, if the employee "acted in a grossly negligent, willful or malicious manner." After a study of the facts of the case the city solicitor has concluded that "the best interests of the city would be to show (a) that the police officer was not acting within the scope of his official duties when he assaulted a person without probable cause to even arrest him and (b) that he acted in a grossly negligent, willful or malicious manner." The solicitor has also concluded that the best interests of the officer would require diametrically opposing evidence.

Discussion: We believe that this inquiry is governed by the provisions of DR 5-105, as amended effective July 1, 1979. This disciplinary rule provides that:
(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, or if it would be likely to involve him in representing differing interests, 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, or if it would be likely to involve him representing differing interests, except to the extent permitted under DR 5-105(C). (Emphasis added.)
(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 a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment.
Interpretation of this rule is aided by consideration of EC 5-17, which is as follows:
Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury case, an insured and his insurer, and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. In certain circumstances, there may exist little chance of the judgment of the lawyer being adversely affected by the slight possibility that the interests will become actually differing; in other circumstances, the chance of adverse effect upon his judgment is not unlikely.
No general rule can be stated as to whether it is always proper or always improper for a city solicitor to defend both the city and one of its police officers in this kind of civil rights action. Each case must be analysed to determine whether there is likely to be any difference between the interests of the officer and the city.
In a case where no such difference is likely to present itself, then the representation is proper, if both clients consent after full disclosure. In a case where such a difference is probable, the representation is never proper, even if the clients consent. Under DR 5-105(C), consent is only effective if it is "obvious" that the lawyer "can adequately represent the interests of each" client. In litigation, it is never "obvious" that such is the case: "A lawyer should never represent in litigation multiple clients with differing interests" (EC 5-15).
Since the lawyer has concluded that the interests of his two prospective clients are different, we advise him that it is not proper to represent them both. If the city's best interests lay in contending that the officer had not violated the plaintiff's civil rights, the answer would be different. In such a case the city's interest would appear to be the same as the officer's and, therefore, it would be "obvious" (with disclosure and consent) that the lawyer could adequately represent the interests of each.


Permission to publish granted by the Board of Delegates on April 9, 1980.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.