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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1987-39
Conflicts, Representation of Adverse Interests
Your inquiry recites that you have been representing Client A, a family of five, since early January 1987, regarding their injuries in an automobile accident on December 31, 1986. At that time, their car was struck by another vehicle and the driver of the other vehicle was charged with DWI and several other traffic offenses. You have been guiding Client A through settlement of their property damage claim and have been receiving medical bills and reports but have not yet filed suit on behalf of Client A.
On February 11, 1987, you were appointed by the Public Defender for Howard County to be a Panel Public Defender for Client B, who is charged with theft, among various other crimes. The alleged date of Client B's violations is early November 1986. You interviewed Client B and he stated he had been involved in an automobile accident on December 31, 1986. As he continued, it became apparent to you that he had been an occupant in the car which struck Client A's vehicle. Sensing that there might be some type of conflict in your representation, you stopped Client B from saying anything further. Before he stopped, Client B had alleged some facts which were very favorable to Client A's case and some of which were detrimental to it. (The detrimental allegations are contrary to those alleged by Client A and also contrary to police statements).
You indicate that if the personal injury claim on Client A's behalf cannot be settled, that you do not foresee having to file suit against Client B as he was neither the driver nor the owner of the vehicle which struck Client A's car. Client B, however, has a possible claim against Client A for any personal injuries he received as a result of the collision. You further indicate that the allegations which you learned from Client B are far less that you would have learned eventually through witness interviews. Client B is un-represented as to the auto accident case.
You indicate that as soon as the-situation arose, you immediately ceased all work which you were performing on behalf of Client A and Client B, and now ask the Committee whether you have a conflict of interest problem under Maryland Rule of Professional Conduct 1.7.
Rule 1.7 provides:
(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 a third 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 consolation.
(c) The consolation 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.
Section (a) of Rules 1.7 would apply if the representation of Client A is directly adverse to Client B or vice versa. Based upon the information that you have provided us with, it would appear
Section that your representation of Client A for personal injuries sustained in the auto accident is not directly adverse to your representation of Client B for the criminal offenses. The more difficult question, however, regards the applicability of Section (b) and the determination of whether your representation of Client A or Client B would be materially limited by your responsibilities to the other. It is difficult, based upon the facts that you have given, to determine whether your representation of A or B would be materially limited. A question arises as to whether Client B sustained injuries in the accident which would give rise to a claim against Client A and whether Client B has expressed any thought or intention regarding such a claim. Rule 1.7(b) not only puts the onus upon the lawyer to reach his own determination as to whether the representation would or would not be adversely affected, but also requires the client's consent if the representation would be materially limited but the lawyer believes the representation would not be adversely affected.
If Client B does have personal injuries as a result of the accident, it would appear that your proper representation of Client B would be materially limited by your responsibilities to Client A.
In the event you choose to withdraw from your representation of Client A or B, you are then bound by Rule 1.9 regarding ""Conflicts of Interest; Former Client"" and Rule 1.6 regarding ""Client Confidentiality of Information"".
Lastly, we would agree with you that in the event you decide to withdraw as counsel for Client A or Client B, the other members of your firm would also be disqualified under Rule 1.10.
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