Ethics Opinion

Opinion No. 84-4

April 1984

Summary: An attorney for a plaintiff who settles a case with a defendant ought not thereafter represent the defendant in his suit against a third party arising out of the same facts when the plaintiff, represented by another lawyer, has also sued the same third party in connection with the same events.

Facts: A lawyer inquires whether he may represent a Mr. T in his attempt to recover against the driver of a truck ("Truck Driver") that hit T's car, killing a passenger (''Passenger'') in T's car. Lawyer performed certain investigations on behalf of, and at the request of the attorney for, Passenger's estate in connection with the estate's claim against T, which has now been settled and paid by T's insurance company. Mr. T, whom Lawyer had previously advised in an unrelated matter and whom he had referred to another attorney in connection with this matter, has now engaged Lawyer to bring an action against Truck Driver. The case brought by Passenger's estate against Truck Driver is being handled by another attorney. Lawyer asks advice about whether he may represent T.

Discussion: It is our opinion that although Lawyer did only investigatory work for the attorney representing the Passenger's estate, the rules of professional responsibility apply to him in the same way as they would apply to any member of the attorney's firm. In that regard, we see several problems presented by Lawyer's proposed representation of Mr. T. First, there is a problem of the confidences that he and the firm for whom he was working received in connection with the representation of Passenger's estate. We do not know the extent of them, but he would certainly need the consent of the estate before making use of any confidential information received by him or any of the lawyers for Passenger's estate on behalf of Mr. T in the pending litigation.
Second, beyond the issue of confidences is the more general question of the effect of the proposed representation on Lawyer's "independence of judgment" and loyalty toward his "former" client and his present client. Whether a lawyer may switch sides by representing a client whom he had opposed in connection with the same factual situation after the litigation on which the first client is involved has been settled has produced a division of opinion among the relatively few ethics committees that have considered the issue. Compare Los Angeles Bar Opinion 141, 19 L.A. Bar Bulletin 59 (1943) and Opinion 152, New York County Lawyer Association (1918) with Opinion 789, Association of the Bar of the City of New York (1954) and Opinion 63, Michigan State Bar (1940), 38 Michigan State Bar J. 86 (May 1959). We believe, however, that the circumstances of this case do not require us to answer the hardest side-switching case, one where the first client is entirely out of the picture.
If Passenger's estate is seen purely as a former client then since the matters are substantially related, at least under the general rule Lawyer would be permitted to represent T if he obtained the consent of the estate. If, however, the situation is seen as representation of two clients simultaneously, then it would not be enough that he obtained the consent of each. It is also a requirement of DR 5-105(C) in such a case that it be "obvious" that he "can adequately represent the interest of each." See The McCourt Co. v. FPC Properties, Inc., 386 Mass. 145, 434 N.E.2d 1234 (1982).
This inquiry presents some of the characteristics of each situation. Insofar as the litigation between the Passenger's estate and T has been settled, that makes the estate look like a former client. If that were all that was involved here, we would have to decide whether the general rule regarding consent should be applied to the former client situation in a side-switching case. However, litigation arising out of the accident is still going on and not only is T still involved, but Passenger's estate is also still involved in that litigation. Both are suing Truck Driver. That makes the proposed representation look more like that of multiple representation since it may well be that conducting litigation on behalf of T will involve Lawyer in doing things that are adverse to the interests of Passenger's estate in regard to the very subject matter of the prior representation. For one thing, if there is limited money to be had from Truck Driver and his insurance company, there might be competition between T and Passenger's estate for that money during settlement negotiations or after a trial. Indeed, it might even be advantageous to T to consolidate the two pending actions and then to attempt to defeat recovery by Passenger's estate so that that competition will not exist.
There is yet another aspect to the side-switching proposed here. Not only is Lawyer seeking to take a position that may require him to oppose the interests of Passenger's estate, his "former" client. He is also proposing to represent T, his adversary in the settled suit. There is always the danger that, at the time the initial suit was pending, an attorney in the position of Lawyer, if he has any hope of representing T after the initial suit is settled, might be tempted not to press the estate's interests sufficiently in the original suit. The danger is greatest when, as here, Lawyer has represented T in the past.
Since the settlement of the suit by Passenger's estate against T did not completely end the connection of the Passenger's estate with the litigation, there is, in our view, a sufficient adverseness of interest between it and T that it would not be consistent with Lawyer's duty of loyalty to Passenger's estate to permit him to switch sides in this matter. See Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), reaching the same conclusion in a similar situation. In short, we regard the three lawsuits arising out of the accident as so closely related that they should be regarded as one for conflict of interest purposes. The settlement of just a piece of a litigation should not eliminate the applicability of the multiple representation rules any more than withdrawal from representation of one of two clients in the middle of a case eliminates their applicability. See, e.g., Unified Sewerage Authority v. Jelco, Inc., 646 F.2d 1339, 1345 n.4 (9th Cir. 1981). DR 5-105(C) is therefore applicable, and under that subsection, because of the adverse interests that we have noted, it is not "obvious" that representation of T would be consistent with adequate representation of the interests of Passenger's estate. We therefore advise that Lawyer not undertake representation of T.

Permission to publish granted by the Board of Delegates on November 29, 1984. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.