My firm was hired by an insurer to defend both the insured and the driver, but the driver never responded and now the insured has given me information adverse to the driver. Can I drop the driver and represent the insured?

Plain-English summary

An insurance company engaged the inquiring attorney's firm to represent both its insured under an automobile policy and the alleged driver of the insured vehicle in an action arising out of a collision. The attorney sent letters and made calls to the insured and the driver but got no response. After learning the driver had been served, and unable to reach the driver, the attorney filed an answer for the driver to avoid a default. Weeks later the insured, having been served, consulted the attorney and, during that consultation, the attorney acquired information adverse to the driver and favorable to the insured. The attorney told the insured the firm could not represent both because of a conflict, and asked whether the attorney could withdraw from the driver and take on the insured.

The panel concluded that filing the answer constituted representation of the driver, even though the attorney had never communicated with the driver and had acquired no confidential information from the driver. Under Rule 1.7, the attorney was prohibited from representing the insured because the insured's interests were directly adverse to the driver's, and even mutual consent would not permit the representation because representing one would adversely affect the relationship with the other. The panel emphasized that the Rules make no provision for curing such a conflict by abandoning a current client to take on someone whose interests are adverse, and that withdrawal would not convert the problem into a former-client question under Rule 1.9. The attorney could, however, withdraw from the driver's representation under Rule 1.17(b) if withdrawal could be accomplished without material adverse effect on the driver or for good cause, subject to the court's discretion because the attorney was counsel of record.

Currency note

This opinion was issued in January 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 1.17 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which also renumbered several rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does filing an answer create an attorney-client relationship even without client contact?

A: The opinion concluded that it does. Filing an answer on the driver's behalf constituted representation, even though the attorney never communicated with the driver and acquired no confidential information from the driver.

Q: Can a lawyer cure a conflict by dropping one client and keeping the other?

A: No. The opinion stated the Rules make no provision for curing a conflict by abandoning a current client in order to represent someone whose interests are adverse, and Rule 1.7 barred representing the insured whether or not the lawyer withdrew from the driver.

Q: Would client consent have solved the problem?

A: No. The opinion concluded that even if both the driver and the insured consented, the representation would not be permissible because representing one would, without question, adversely affect the attorney's relationship with the other.

Q: Could the lawyer still withdraw from the driver's case?

A: Yes. The opinion said the lawyer could withdraw under Rule 1.17(b) if it could be done without material adverse effect on the driver or for good cause, but that withdrawal was subject to the court's discretion because the lawyer was counsel of record.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.7 (Model Rule 1.7) as originally adopted. Rule 1.7(a) barred representing a client if the representation would be directly adverse to another client, unless the lawyer reasonably believed the representation would not adversely affect the relationship with the other client and each client consented after consultation. The panel read those conditions as unmet here. It treated withdrawal under Rhode Island Rule 1.17(b) as available on the usual terms (no material adverse effect, or good cause) but as no cure for the conflict, and distinguished the former-client rule, Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(a) (conflict of interest: general rule)
• RI RPC 1.17(b) (withdrawal from representation, as numbered at the time)
• RI RPC 1.9 (conflict of interest: former client), distinguished

Other opinions cited:

• Alabama State Bar Disciplinary Comm. Op. 92-21 (1992): a firm may not represent one client against another even on unrelated matters, and withdrawal does not make it a former-client conflict

See also

• RI EAP Op. 98-05: Suing a former client in an unrelated car accident
• RI EAP Op. 98-10: An insured's right to have the lawyer file suit
• RI EAP Op. 99-05: Concurrent representation of victims of the same perpetrator, no conflict

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2098-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                        RHODE ISLAND SUPREME COURT
                          ETHICS ADVISORY PANEL
                         Opinion No. 98-01, Request No.735
                              Issued January 15, 1998

FACTS:

    An insurance company has engaged the inquiring attorney’s law firm to represent both its

insured under an automobile policy and also the alleged driver of the insured vehicle in an action
arising out of a collision with another automobile. The inquiring attorney sent letters and made
telephone calls to the insured and to the driver regarding the claims and the representation, but
received no response. Having received notice that the driver had been served with a complaint,
and notwithstanding that attempts to contact the driver were unsuccessful, the inquiring attorney
filed an answer with the court on behalf of the driver to avoid default. Several weeks later, the
insured, finally having been served with a complaint in the same matter, consulted with the in-
quiring attorney. During the consultation, the attorney acquired information that is adverse to the
interests of the driver and favorable to the insured. The inquiring attorney has advised the in-
sured that his/her law firm cannot represent both the insured and the driver because of a conflict
of interest.

ISSUES PRESENTED:

    The inquiring attorney asks whether he/she may withdraw from the representation of the

driver, and take on the representation of the insured.

OPINION:

    Rule 1.7 of the Rules of Professional Conduct prohibits the inquiring attorney from repre-

senting the insured in this matter whether or not the inquiring attorney withdraws from the repre-
sentation of the driver. The inquiring attorney may withdraw from the representation of the
driver if withdrawal can be accomplished without material adverse effect on the driver’s interests
or for any of the enumerated reasons in Rule 1.17(b), including good cause.

REASONING:

    While the inquiring attorney never communicated with the driver and states that he/she

did not acquire any confidential information from the driver, nevertheless, filing an answer on
the driver’s behalf constitutes representation. Rule 1.7 states in pertinent part:
Rule 1.7. Conflict of Interest: General Rule.

     (a) A lawyer shall not represent a client if the representation of that cli-
     ent will be directly adverse to another client, unless:

FinalOp. 98-01
Jan. 15, 1998
Page 2

           (1) the lawyer reasonably believes the representation
           will not adversely affect the relationship with the other
           client; and
           (2) each client consents after consultation.

    The inquiring attorney is prohibited from representing the insured in this matter because

the insured’s interests are directly adverse to the interests of the inquiring attorney’s client, the
driver. Even in the unlikely event that the driver and the insured were to consent to the concur-
rent representation, the representation would not be permissible because the representation of
one will, without question, adversely affect the attorney’s relationship with the other. See Rule
1.7(a). The Rules make no provision for a lawyer who is faced with such a conflict to cure
the conflict by abandoning a current client in order to take on the representation of an individual
whose interests are adverse to that client. Withdrawal from representation of the driver in the in-
stant inquiry will not place the conflicts problem within the rubric of conflicts with a former cli-
ent under Rule 1.9. See Alabama State Bar Disciplinary Comm. Op. 92-21 (1992) (law firm may
not represent one client against another even if subject matter of suits are unrelated, and with-
drawal from representation of one client will not make situation a conflict with former client.)

    This is not to say that the inquiring attorney may not withdraw from the representation of

the driver. Pursuant to Rule 1.17(b) the inquiring attorney is permitted to withdraw if withdrawal
can be accomplished without material adverse effect on the driver’s interests or for any of the
enumerated reasons in Rule 1.17(b), including good cause. The Panel notes, however, that be-
cause the attorney is the attorney of record in the pending litigation, his/her withdrawal is subject
to the discretion of the court.

    Accordingly, the Panel concludes that the inquiring attorney may withdraw from the rep-

resentation of the driver under the Rules, but is prohibited from representing the insured under
Rule 1.7 whether or not he/she withdraws from the representation of the driver.