Can one lawyer represent both the driver and a passenger of the same car in a crash case where fault is disputed?

Plain-English summary

Two cars collided, each driver blaming the other. A passenger (Bea) in one car, represented by Attorney C, sued the other driver (Alice); Bea did not sue her own driver (Dee, then her uninsured, asset-less daughter-in-law, whom Attorney C had also represented in a license-suspension hearing). Alice then brought a third-party claim against Dee, and Dee, also represented by Attorney C, cross-claimed against Alice. Alice's lawyer questioned whether Attorney C could represent both Dee and Bea, and Dee and Bea wished to sign a written waiver so Attorney C could continue.

The opinion applied Rule 1.7(a) and (c). It concluded that representing both the driver and passenger in a contested-liability collision is a classic conflict, because a lawyer for the passenger alone would be indifferent as to which driver is at fault, while a lawyer for the passenger's own driver would seek to avoid that driver's responsibility even at the cost of the passenger's recovery. It cited decisions from New York, New Jersey, and Pennsylvania disapproving such dual representation.

The opinion concluded that, although such situations are rare, it would not say dual representation can never be permissible with disclosure and consent, and that the present facts may qualify: both Bea and Dee believed Alice was solely at fault, Dee had no insurance or assets and was indifferent to a judgment, and Bea appeared unwilling to enforce a judgment against Dee. If, after appropriate disclosure, both consent, Attorney C may undertake the joint representation. Finally, it concluded that if Attorney C instead continues for Bea alone, Dee's consent is required under Rule 1.9, because Attorney C formerly represented Dee in the related license hearing and continued representation of Bea would be adverse to Dee.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 1.7 with Comments [23] and [29-33] and Rule 1.9), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can one lawyer represent both the driver and passenger of the same car after a crash?

A: The opinion concluded that in a contested-liability collision this is a classic conflict an attorney should generally not undertake, because the passenger's and driver's interests diverge over who is at fault.

Q: Is the conflict ever waivable?

A: The opinion concluded that in unusual circumstances the driver and passenger may consent after appropriate disclosure under Rule 1.7, and that the inquiry's facts (an indifferent, judgment-proof driver and a passenger unwilling to enforce against her) may present such a case.

Q: What if the lawyer drops the driver and keeps only the passenger?

A: The opinion concluded the lawyer must still obtain the former driver-client's consent under Rule 1.9, because the lawyer had represented her in a related matter and continuing for the passenger would be adverse to her.

Background and rules framework

The opinion interpreted Rule 1.7 (concurrent conflicts and the disclosure required for common representation under Rule 1.7(c); Model Rule 1.7) and Rule 1.9 (duties to a former client in a substantially related matter; Model Rule 1.9). It surveyed out-of-state decisions disapproving joint driver-passenger representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7(a), (c)
• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9

Cases:

• Fugnitto v. Fugnitto, 452 N.Y.S.2d 976 (1982), disapproving joint driver-passenger representation
• In re Shaw, 88 N.J. 433, 443 A.2d 670 (1982), inherent conflict
• Jedwabny v. Philadelphia Transportation Co., 390 Pa. 231, 135 A.2d 252 (1957), new trial granted

See also

• ISBA Ethics Op. 96-06: Concurrent Representation of Parents and a Minor Child
• ISBA Ethics Op. 96-05: Conflicts of Interest in Estate Matters
• ISBA Ethics Op. 94-15: Divorce Against a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9309