NYSBA Ethics Opinion 74

NYSBA Ethics Opinion 74

3.28.1968

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #74 – 03/28/1968 (32-67)

Topic: Conflict of interest
Digest: Representation of injured child in action against injured parents, Attorney retained by parents
Canon: Former Canon 6

QUESTION

While husband and wife were riding with their infant child in the wife’s car with the husband driving, an accident occurred resulting serious injury to the child and damage to the automobile.  The parents retained an attorney to recover for the personal injuries to the child and for the property damage to the wife’s automobile.  Following investigation by the attorney, it became apparent that the accident may have been caused either by the negligence of the manufacturer of a tire that blew out or by the negligence of the driver.  The question thus arose as to whether or not, in addition to bringing the action against the tire manufacturer, an action should be brought directly against the parents, who carried liability insurance.The attorney retained by the parents advised that although an un emancipated child has been held, in New York, to have no cause of action against his parents for negligence, there was a remote possibility of recovery in this case; that the insurance carrier could defend in their behalf, but that they would be personally liable for any recovery over the limits of the policy. The parents gave the attorney permission to commence the action against themselves and the tire manufacturer. The attorney had a relative of the child appointed guardian ad litem, and instituted the action.  Subsequently, the attorney became concerned that despite his disclosure and the parents’ express consent, there were conflicting interests among the parties, and he advised the parents to obtain a substitution of attorneys. The patents informed him that they do not want a substitution, and have asked him to continue in the case.  The attorney inquires if he may proceed with the matter.

OPINION

It would be improper for the attorney, who was retained by the parents to bring an action against the tire manufacturer to recover for property damage to the wife’s automobile, to represent the interests of the child in an action against the parents for personal injury.  Neither the parents’ consent, nor the attorney’s withdrawal as counsel of record in the wife’s suit against the tile manufacturer, would justify the attorney’s handling the child’s claim against the parents.Canon 6 reads in part as follows:”It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.  Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”As stated in Drinker’s “Legal Ethics”, at page 120, Canon 6 “does not sanction representation of conflicting interests in every case where such consent is given, but merely forbids it except in such cases” (emphasis in original). He further points out at there are “certain cases in which such representation is improper or at least unwise even with consent”.In this case, the potential conflicts are so serious that it would be impossible for the attorney to discharge his duty to both sides.  For example, it may become his duty to press for a recovery against the patents exceeding the limits of their insurance coverage. Other possibilities of conflict creating problems of divided loyalty exist in connection with such matters as discovery proceedings, settlement negotiations, litigation strategy and appeals.In the absence of insurance, the parents would not consent to the proposed transfer of allegiance. The situation should be no different, merely because the parents are covered by insurance.  It is immaterial, so far as Canon 6 is concerned, that an attorney for the insurance company probably will defend the case, for “interests which are essentially adverse remain so regardless of any contract of indemnity a party may have.” (N.Y.City 223, 711).It would, of course, not be improper for an attorney who does not represent a child’s parents to be retained by a guardian ad litem to institute action against the parents, even though the guardian ad litem was appointed upon application of the parents, so long as there is no collusion or conspiracy to mulct the insurance company.  This is distinguishable from a case where an attorney is retained at the instance of an insured car owner to represent an injured party in an action against the insured, which has been disapproved as in violation of the Canons of Ethics. (N.Y.City 603).In the circumstances described in the inquiry, the attorney should inform the parents that inasmuch as he was originally retained by them, he cannot represent their child in an action against them. If they refuse to agree to a substitution, he should apply to the Court to be relieved of the case.