Opinion 87-10
(April 1987)

This will acknowledge receipt of your letter of April 15, 1987, for professional guidance on an ethical dilemma facing you. As Chair of the Professional Guidance Committee, and because of your time constraints, I have taken the liberty of responding to your letter without debating the issues before the entire Professional Guidance Committee.

In your letter, you state that you instituted a personal injury lawsuit on behalf of a husband and wife, which included a claim for loss of consortium on behalf of the husband. Your letter further indicates that since the institution of the lawsuit and completion of discovery, the parties have separated, and are now engaged in bitter marital litigation.

You have written to the husband's divorce attorney indicating that under the present circumstances you would like the husband to obtain other counsel. However, the husband has indicated a desire that you continue to represent him in this matter. The wife has requested that you not represent the husband, a preference which you share.

Under the circumstances, as presented in your letter, it would be my recommendation that you not continue to represent the husband. It presents a classic conflict of interest dilemma. To that end, I refer you to Guidance Opinion 87-4 which was recently issued by the Professional Guidance Committee. Although that opinion permitted the continued representation, it did raise some of the same issues which you must consider.

In addition to the conflict issues which are covered under Canon 5, you must also consider the impact of DR2-110 which outlines the issues which a lawyer must consider when withdrawing from employment. In view of the fact that your case is on the trial list, it is imperative that you consider the possible prejudice to the husband's claims by your desire to withdraw. To that end, you should take immediate steps to avoid any foreseeable prejudice to the rights of the husband and assist him in the transition of the representation, if possible.

In view of the imminent trial schedule, it may not be possible for you to obtain other counsel. In such event, and if you are required to continue the representation through trial, I would suggest that you thoroughly review with each of your clients, in writing, the potential conflict of interest issues which are outlined in Guidance Opinion 87-4. These issues should also be reviewed with the respective divorce counsel so as to avoid any unnecessary problems.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.