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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-38
Lawyer as Intermediary, Diligence, Multiple Conflicts of Interest While Representing Passenger and Driver
Your letter states that your office currently represents Client ""X"" for injuries sustained by her in an automobile accident. ""X"" was a passenger in an automobile driven by ""Y"" and ""Y"" is uninsured. The accident occurred at an intersection controlled by an automatic traffic control device. Because the issue of liability appeared to rest squarely with the other driver, ""Z"", your office was retained to represent both ""X"" and ""Y"". After thoroughly investigating the accident, the insurance company for ""Z"" accepted liability for the injuries to both ""X"" and ""Y"". ""Z"" received a citation charging him with failure to stop at a red light and this was also seen by two independent eyewitnesses.
Thereafter, the insurance company for ""Z"" settled both the property damage and bodily injury claims of ""Y"". The claim of ""X"" for bodily injury was not settled and suit was filed on behalf of ""X"" against ""Z"".
Presently, the Defendant, ""Z"", has filed a third-party complaint against ""Y"" whom your office formerly represented. ""Z"" is now claiming that he, ""Z"", had a green light.
Both ""X"" and ""Y"" are adamant that ""Z"" caused the accident by failing to stop for a red light. In addition, you have stated that, after discussing the status of this case with your client, ""X"", ""X"" does not wish for you to file an amended complaint to bring in ""Y"" as a party defendant.
Your question whether your office can continue to represent ""X"" as a result of the third-party complaint filed against ""Y"". In light of the fact that you were retained to represent ""X"" and ""Y"" in connection with this automobile accident and your representation of ""Y"" has been concluded, the Committee is of the opinion that there is no reason why you cannot continue to represent ""X"" inasmuch as ""X"" has elected not to file an amended complaint to bring in ""Y"" are still maintaining that the fault of this accident lies solely with ""Z"", who allegedly ran a red light.
You also wish to know whether your office can represent both ""X"" and ""Y"" in this matter. This matter is governed by Rule 1.7 of the Maryland Rules of Professional Conduct which states:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to athird person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
(c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved.
The Comment to Rule 1.7 addresses the issue of representing multiple parties where there is a potential for conflict of interest:
A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclosure courses of action that reasonably should be pursued on behalf of the client.
Assuming that the clients have given full consent to your dual representation and are aware of the potential conflicts inherent in this representation as a result of your consultation with them as required by Rule 1.7, the Committee is of the opinion that your office may represent both ""X"" and ""Y"" in this case.
Lastly, you question whether you may advise or counsel ""Y"" so as to prevent entry of a judgment by default against him. This Committee is of the opinion that the dictates of the Maryland Rules of Professional Conduct are such that you may either represent both ""X"" and ""Y"" assuming they have full knowledge of and consent to your representation or you may only continue to represent ""X"" if one of them objects to your dual representation. If there has been an objection to your dual representation, you may not advise or counsel ""Y"" in any manner.
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