13.17. Reading: Florida Ethics Opinion 02-3 (JUNE 21, 2002)

Reading Guide

Preparing for the Reading:
This opinion analyzes conflicts of interest and multiple client representation in a very familiar scenario. A driver and a passenger are involved in a car accident. Both the driver and the passenger come to the lawyer for representation. Can the lawyer represent both the driver and the passenger?

Issues:
– For each Scenario addressed by the opinion: is it ethical for a lawyer to represent both the driver and the passenger? Note the reason.
– Do you think the analysis of the scenarios using ABA Rule 1.7 would reach the same conclusion as under the Florida rule?

Florida Ethics Opinion 02-3 (June 21, 2002)

The Committee has recently received an inquiry from a Florida Bar member regarding whether an attorney need avoid representation due to a conflict when the attorney is asked to represent both passenger and driver in a suit for negligence/property damage against a third party driver in an auto accident. This is an issue that arises in personal injury cases in various fact situations, including the following:

1. The driver and passenger prospective clients are both injured and liability is clearly with the third party driver. There are no claims of comparative negligence or fault against the plaintiff driver.

2. The driver and passenger prospective clients are both injured and liability lies mostly with the third party driver. However, the third party’s insurance company is alleging comparative fault by the plaintiff driver.

3. Driver and passenger prospective clients are members of the same family and both are injured in an auto accident. While the plaintiff driver may have been partly at fault, the driver was uninsured and has no assets to satisfy an adverse judgment.

4. The driver and passenger prospective clients are both injured and evidence shows that the plaintiff driver was definitely at fault as well as the third party driver of the other vehicle.

5. The driver and passengers, who are members of the same immediate family, are all injured and the third party tortfeasor is claiming some fault on the part of the driver. The driver is the wife/mother of the passengers. Her liability policy has denied coverage for the other family members due to a “family exclusion” clause in the policy; she has no significant assets.

Regarding multiple representation of clients, Rule 4-1.7, Florida Rules of Professional Conduct, provides:

[Look at ABA Model Rule 1.7]

The Florida Rules of Professional Conduct, ethics opinions and opinions of Florida courts provide guidance in these matters. The Florida Supreme Court has issued an opinion specifically dealing with ethical issues involved in representing both driver and passenger(s) in an auto accident. The Court held in The Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993), that one attorney could not simultaneously represent both driver and passenger in an auto accident where the passenger is pursuing a claim for negligence against the driver. Dual representation in these circumstances would violate Rule 4-1.7(a), supra. This decision echoes an earlier Florida Ethics Opinion 73-2, which reached the same conclusion.

Similarly, the Court held in State Farm Mutual Ins. Co. v. K.A.W., 575 So.2d 630 (Fla. 1991), that a law firm which had represented driver and passengers against third party insurers and tortfeasors could not later represent the passengers against the driver. The firm was disqualified due to the strenuous objection of a real party in interest, the insurer, even though the driver had a new attorney at the time he was sued and had consented to the passengers’ suit. Id.

Such conflict issues may not be apparent at an initial consultation with prospective clients. Conflict issues may arise later or be resolved during discovery and litigation. Conflict issues that arise in personal injury auto accident cases can present various fact situations, including the following:

Scenario 1

Where there are no actual or potential claims by passengers against the driver of the vehicle in which the passengers were injured, one attorney can ethically represent all parties as long as there is sufficient insurance coverage by the third party tortfeasor to cover the injuries of all injured plaintiffs. If there is not sufficient funding to cover the injuries of all the plaintiffs, one attorney may represent all the parties, with their knowing consent and waiver of conflict, only if all the plaintiffs are able to agree regarding the distribution of benefits/recovery among themselves. Rule 4-1.7(a)(1) and (2), Florida Rules of Professional Conduct.

Individual representation of each of the plaintiffs is advisable to determine the apportionment of benefits obtained from the third party tortfeasor. If each plaintiff is advised independently, this assures that waivers of conflict are knowing and informed as required by Rule 4-1.7(a)(1) and (2). The parties may agree among themselves to submit to intra-familial arbitration with an independent arbitrator to determine the distribution of benefits on an equitable basis. Independent guardians appointed to represent injured minors can be useful in this regard. The lawyer representing all the claimants as plaintiffs cannot be involved in determining the distribution of the recovery among the various plaintiffs.

Scenario 2

Where the third party tortfeasor is making a claim against the driver of a vehicle in which passengers were injured, and this claim is based upon valid objective evidence, one attorney cannot represent both driver and passenger(s). Similarly, in a one car accident, where there is evidence of negligence by the driver, one attorney cannot represent both driver and passenger(s). A conflict exists under Rule 4-1.7(a) and (b), Florida Rules of Professional Conduct; Ethics Opinion 73-2; The Florida Bar v. Mastrilli, supra.

As noted in the Comment to Rule 4-1.7, “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.” In determining whether a conflict exists, the attorney should look at the situation as if he or she were representing the passenger(s) alone. If, in that situation, the attorney would sue the driver, then in most circumstances, the attorney cannot represent both driver and passenger(s). Florida law allows suits by one spouse against the other spouse to the extent of insurance coverage. Ard v. Ard, 414 So.2d 1066 (Fla. 1982).

[Scenario 3 omitted]

Scenario 4

Where the driver and passengers are all injured, but evidence shows that the plaintiff driver was partly at fault or at least a substantial question is raised as to the fault of the plaintiff driver under objectively valid evidence obtained, such that an independent attorney would advise the passenger to sue the driver, there exists a Rule 4-1.7(a) conflict between the passengers and driver. Under these circumstances one attorney cannot represent both driver and passengers, even with the consent of the clients involved. Rule 4-1.7(a) and Comment; Mastrilli, supra.; Texas Ethics Opinion 500, Oregon Ethics Opinion 2000-158. The same result may obtain if the driver were a former client of the attorney representing the passengers in the accident. Rule 4-1.9(a) and (b), Florida Rules of Professional Conduct.

[Scenario 5 omitted]

Summary

In each of the factual situations set forth above, if the attorney determines that a conflict exists, the attorneys must follow Rule 4-1.16(a) and (d), Florida Rules of Professional Conduct, withdraw from the representation and protect the clients during the withdrawal process by providing them with copies of necessary documents and, if needed, obtaining extensions of time for them to find new counsel. Where an attorney withdraws from representing either driver, passenger, or both because of a conflict, the attorney cannot take a referral fee for referring the former client’s case to another lawyer. Florida Ethics Opinion 89-1. The conflict would prohibit the attorney’s acceptance of joint responsibility for the representation as required by Rule 4-1.5(f)(4)(D)(i) and (ii), Florida Rules of Professional Conduct, and Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1995).

As shown in the varying fact situations set forth above, each case must be dealt with on its own facts, following the guidelines set forth in Rules 4-1.7 and 4-1.9, Florida Rules of Professional Conduct and the above cited decisions.