LEO #1592 CONFLICT OF INTEREST; MULTIPLE REPRESENTATION; CONTACT
WITH ADVERSE PARTY; REPRESENTATION OF INSURANCE CARRIER
AGAINST PRO SE UNINSURED MOTORIST; ATTORNEY-CLIENT
RELATIONSHIP
You have presented a hypothetical situation in which Attorney A has
been retained by an uninsured motorist insurance carrier to defend
the carrier in an action in which the uninsured motorist
("Defendant Motorist") has appeared pro se. Although Attorney A
has not entered an appearance on behalf of Defendant Motorist,
Defendant Motorist has consulted with Attorney A, and Attorney A
has assisted Defendant Motorist and/or given Defendant Motorist
advice in the following ways:
(1) Attorney A, during the deposition of Defendant Motorist,
raised objections of privilege on behalf of Defendant
Motorist and advised Defendant Motorist not to answer
certain deposition questions propounded by the plaintiff.
(2) Attorney A instructed Defendant Motorist not to produce
certain physical evidence which was requested by
plaintiff, and which during his deposition Defendant
Motorist had agreed to produce. Following Attorney A's
advice,
Defendant Motorist subsequently informed the plaintiff
that the physical evidence would be available for
inspection at Attorney A's office following a criminal
hearing which is based on the same accident giving rise
to the uninsured motorist claim. Defendant Motorist is
represented by separate criminal defense counsel in the
criminal matter.
(3) Plaintiff filed a motion to compel discovery responses
from Defendant Motorist. Attorney A opposed the motion on
the basis that Defendant Motorist should not be compelled
to produce the information requested. Defendant Motorist
presented no pro se opposition to the motion, and the
motion was granted.
(4) Attorney A assisted Defendant Motorist in responding to
plaintiff's interrogatories, requests for production, and
requests for admissions, as evidenced by the fact that
the responses were typed on Attorney A's lined pleading
paper in Attorney A's office; interrogatories were
notarized by Attorney A's employee; and discovery
responses were served by mail in an envelope with
Attorney A's name and return address label on it.
You have asked the committee to assume that the uninsured motorist
carrier has a potential future subrogation claim against Defendant
Motorist, but that Attorney A and the uninsured motorist carrier
have not informed Defendant Motorist of the possibility that the
carrier may later assert such a subrogation claim against Defendant
Motorist and have not provided Defendant Motorist with a written
waiver of any future subrogation claims.
You have asked the committee to opine, under the facts of the
inquiry:
(1) whether there is an attorney-client relationship between
Attorney A and Defendant Motorist;
(2) whether, regardless of the answer to question 1, it is
improper for Attorney A to give legal counsel and
guidance to Defendant Motorist when the insurance carrier
may later assert a subrogation claim against Defendant
Motorist;
(3) whether the response to question 2 would differ if
Defendant Motorist was provided a written waiver of the
carrier's potential future subrogation claim, assuming
the carrier consented to such a waiver;
Legal Ethics Opinion #l592
Page 3
(4) whether it is proper for Attorney A to permit Defendant
Motorist to continue to represent to the court that he is
appearing pro se, if in fact, Attorney A is providing him
legal counsel and a defense; and
(5) whether, if the answer to question 1 is yes, it is
improper for Attorney A to continue to represent either
the insurance carrier or Defendant Motorist if the
insurance carrier has not waived the right to pursue any
potential future subrogation claim against the Defendant
Motorist.
The appropriate and controlling Disciplinary Rules related to your
inquiry are:
DR 1-102(A)(4) which states that a lawyer shall not engage in
conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's
fitness to practice law;
DR 5-105(B) which provides that a lawyer shall not continue
multiple employment if the exercise of his independent
professional judgment 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);
DR 5-105(C) which states that a lawyer may represent multiple
clients if 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;
DR 7-102(A)(3) which requires that a lawyer shall not conceal
or knowingly fail to disclose that which he is required by law
to reveal;
DR 7-103(A)(2) which prohibits a lawyer from giving advice to
a person who is not represented by a lawyer, other than the
advice to secure counsel, if the interests of such person are
or have a reasonable possibility of being in conflict with the
interests of the lawyer's client;
DR 7-103(B) which states that, in dealing with a person who is
not represented by counsel, a lawyer shall not state or imply
that the lawyer is disinterested and that he shall make
reasonable efforts to correct any misunderstanding of the
lawyer's role in the matter; and
DR 7-105(A) which provides that a lawyer shall not disregard
or advise his client to disregard a standing rule of a
tribunal or a ruling of a tribunal made in the course of a
proceeding, but he may take appropriate steps in good faith to
test the validity of such rule or ruling.
The committee responds to your inquiries relative to the facts
presented as follows:
1. Once the attorney has advised the uninsured motorist, the
committee is of the opinion that an attorney-client
relationship has been established between Attorney A and
Defendant Motorist. As defined in Part Six, Section I(B)
of the Rules of Court, the relation of attorney and
client exists whenever one furnishes to another advice or
service under circumstances which imply his possession
and use of legal knowledge or skill; and specifically,
whenever one "undertakes Oywith or without compensation,
to prepare for another legal instruments of any
character, other than notices or contracts incident to
the regular course of conducting a licensed business".
Thus, the committee believes that by providing the advice
and assistance to Defendant Motorist as described,
Attorney A has established an attorney-client
relationship. See LEO #1127 and LEO #452.
2. The committee is of the view that if there are no other
conflicts between the carrier and the defendant motorist,
it is not improper for Attorney A to give legal counsel
and guidance to defendant motorist even though the
insurance carrier may later assert a subrogation claim
against defendant motorist. The interest of both is in
defeating the claim of the plaintiff.
3. The committee believes that Defendant Motorist and the
insurance carrier would no longer have conflicting
interests if the insurance carrier were to give a written
waiver of its subrogation rights. Thus, under those
circumstances, it would not be improper or violative of
DR 7-103(A)(2), for Attorney A to give advice to
Defendant Motorist. Attorney A, however, would still
have to comply with the requirements of DR 7-103(B);
i.e., Attorney A could not state or imply that he is
disinterested in the matter.
4. The committee believes that it would be improper for
Attorney A to permit Defendant Motorist to continue to
represent to the court that he is appearing pro se if
Attorney A has advised Defendant Motorist about the
issues in the case or matters which will be presented to
the court.
Under DR 7-105(A), and indications from the courts that
attorneys who draft pleadings for pro se clients would be
deemed by the court to be counsel of record for the prose client, any disregard by either Attorney A or
Defendant Motorist of a court's requirement that the
drafter of pleadings be revealed would be violative of
that disciplinary rule. Such failure to disclose would
also be violative of DR 7-102(A)(3). Further, such
failure to disclose Attorney A's substantial assistance,
including the drafting of pleadings and motions, may also
be a misrepresentation to the court and to opposing
counsel and, therefore, violative of DR 1-102(A)(4). The
committee cautions that Attorney A may wish to obtain
Defendant Motorist's assurance that he will disclose A's
assistance to the court and adverse counsel. See LEO
#1127; Association of the Bar of the City of New York
Opinion 1987-2 (3/23/87), ABA/BNA Law. Man. on Prof.
Conduct, 901:6404.
5. For the same reason set forth in #2 above, it is not
improper for Attorney A to represent the carrier and the
defendant.
[DRs 1-102(A)(4), 5-105(B) & (C), 7-102(A)(3), 7-103(A)(2) & (B),
7-105(A); LEOs #452, 1127, 1172; ABA/BNA 901:6406]
Committee Opinion
September 14, 1994
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