Opinion 91-12
(June 1991)

You have asked for an opinion on several scenarios. You ask what can an attorney facing these various situations do regarding the conflict of interest problems posed by each. What should the attorney state in order to protect himself as well as the clients? Could informed clients retain one attorney? Finally, if one of the clients is referred to another attorney, you ask if you may receive a referral fee.

A) Clients (both the driver and passenger, either husband and wife or boyfriend and girlfriend), present themselves for representation. All parties, both the clients as well as plaintiffs and the defendants, agree that the defendant is without question liable for the accident and the resulting injuries.

B) Clients, plaintiffs, honestly feel that the accident is the defendant's fault, but there is some evidence indicating the plaintiff-driver is completely or partially at fault. In this scenario to fully represent the plaintiff-passenger, one would consider suit against the plaintiff driver, or the plaintiff driver would be brought into the litigation by the defendant.

C) Clear conflict of interest situation where the passenger thinks (and the evidence corroborates this) that it was the driver's fault.

The Pennsylvania Rules of Professional Conduct relevant to this inquiry are 1.7(a) & (b) which relate to conflict of interest with current clients, as well as 1.9(a) & (b) which relate to representation against a former client. In addition, the Comment to Rule 1.7, although not adopted as law in Pennsylvania, is used to give guidance in analyzing ethical problems. The relevant portion of that comment provides that

A client may consent to representation notwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.

The Committee believes that you may proceed to represent both parties in Scenario A provided you comply with the requirements of Rule 1.7a as regards the potential conflict between the two parties. Even though at the start of representation it may appear that there is no negligence on the part of the driver, you cannot stop the defendant from bringing in the driver as a third party defendant, nor can you ignore newly discovered evidence which would place some degree of liability on the driver. Were either of these things to happen, your continued representation of both parties would be barred by the Rule, as your duty to represent your remaining client to the fullest of your abilities would expose your former client to liability and would not be permitted. Rule 1.9 would also be violated by continued representation of one client, absent the express consent of the former client, who would be, as a practical matter, advised and represented by counsel retained by the appropriate insurance carrier. These facts are those that you would have to disclose at the outset of representation to both clients.

The Committee is of the opinion that you may not represent both clients in scenario B. At the outset a direct conflict is evident, and you should not even consult with both driver and passenger as this might preclude you from representing either party. Requesting a waiver of the conflict from the parties would not be ethically permissible, as a disinterested lawyer would conclude that the clients should not agree to the dual representation.

The Committee's analysis of scenario C is the same as B. As regards the acceptance of a referral fee is either case, in these circumstances it would not be proper to receive such a fee. With clients whose interests are adverse, if a referral fee is to be accepted by you, your personal economic interest (i.e. in maximizing the recovery for the referred client, thereby obtaining the largest possible referral fee), is directly adverse to your client's interests in maximizing recovery from all available sources. The Committee has previously addressed this issue in Opinion 89-23.

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.