This will acknowledge receipt of your letter of May 18, 1987. It was presented in time for me to present it to the Professional Guidance Committee at its meeting on May 18, 1987.
In your letter you state that you are currently representing 40 decedents and one survivor in connection with a plane crash. You have now been asked to represent the pilot and with his personal injury claim (or that of his estate) arising out of the same disaster.
Your letter states that the pilot was in no way at fault. In fact, counsel for the airplane manufacturer has represented that there was no pilot error and has stated - "the pilot was a hero."
Based upon the facts presented, and in particular, your statement that there is no pilot error at issue, the Committee concluded that there is nothing ethically improper with respect to your assuming the representation of the pilot. Nevertheless, I thought it important to highlight several issues for your future consideration:
(1) Pursuant to DR5-105(A), "[a) lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely effected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR5-105(C)."
(2) Pursuant to DR5-105(B), "[a) lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be, adversely effected by his representation of another client, or, if it would be likely to involve him in representing differing interests, except to the extent permitted under DR5-105 (C)."
(3) Pursuant to DR5-105(C), "[I)n the situations covered by DR5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effects of such representation on the exercise of his independent professional judgment on behalf of each."
(4) Pursuant to DR5-106(A), "[a] lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all of the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement."
In connection with the foregoing Disciplinary Rules, I am assuming that you have given due consideration to the potential differing interests between and among the group of plaintiffs who you are representing and have reached the judgment that you can adequately represent the interests of each, without impairing the interests of any. The exercise of such independent professional judgment with respect to each client is, in my view, an essential ingredient to undertaking the representation of not only the pilot, but each of the other plaintiffs as well.
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- For the Public