The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
June 21, 2002
June 21, 2002
The Professional Ethics Committee discusses various situations involving representation of both driver and passenger(s) in a car accident, determining that whether or not a conflict of interests exists and whether or not a conflict may be waived, must be done on a case-by-case basis.
RPC: 4-1.5(f)(4)(D)(i) and (ii), 4-1.7, 4-1.7(a), 4-1.7(a)(1) and (2), 4-1.7(b), 4-1.7(b)(1) and (2), 4-1.7(c), 4-1.9, 4-1.9(a) and (b), 4-1.16(a) and (d)
Opinions: 73-2, 89-1, 95-4, Oregon Ethics Opinion 2000-158, Texas Ethics Opinion 500
Cases: State Farm Mutual Ins. Co. v. K.A.W., 575 So.2d 630 (Fla. 1991); The Florida Bar v. Mastrilli, 614 So.2d 1081 (1993); Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992), rev. dismissed, 618 So.2d 208 (Fla.1993); Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1995), Ard v. Ard, 414 So.2d 1066 (Fla. 1982), Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996)
Statute: F.S. § 768.81 (1999)
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:
(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and
(2) each client consents after consultation.
(b) Duty to Avoid Limitation on Independent Professional Judgment. A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
Rule 4-1.7(c), Florida Rules of Professional Conduct, continues:
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
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:
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.
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).
Typically, the only exception to the conclusion in Scenario 2 would be when passenger and driver are members of the same family and the driver is uninsured or otherwise judgment proof. Comparative fault precepts may come into play. Fla. Stat. Sec. 768.81 (1999). Where a conflict of interest exists under Rule 4-1.7, lawyers must be very cautious in undertaking multiple representation. The Florida Bar v. Mastrilli, supra. The situation must be one in which an independent attorney would determine that it is not worthwhile or appropriate to sue the driver because there is no legal or economic basis for a claim under the circumstances. Comment to Rule 4-1.7. The same conclusion would be reached if the third party tortfeasor’s claim against the driver is bogus and without substantiation in fact. As set forth in Oregon Ethics Opinion 2000-158:
There may be situations in which allegations of contributory negligence do not create an actual conflict. The passengers may disagree with the adverse driver’s factual contentions. If the driver and the passengers are closely related, the passengers may not wish to pursue intra-family claims. Assuming that these decisions not to pursue claims are made voluntarily and without influence arising from the lawyer’s obligations to the driver, there is no actual conflict between the clients.
Again, knowing consents and waivers must be obtained from all parties in these circumstances. It may be the better practice for these consents to be obtained in writing and for the parties to be given the opportunity to consult with independent counsel before waiving an actual conflict.
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.
When passenger and driver are members of the same family and the driver is underinsured, uninsured or otherwise judgment proof, one attorney can represent all parties against the driver’s uninsured/underinsured motorist policy and against the tortfeasor if the situation is such that an independent attorney would determine that it is not worthwhile or appropriate to sue the driver because there is no legal or economic basis for a claim under the circumstances. Comment to Rule 4-1.7. The same result would obtain if the tortfeasor’s claim against the driver is bogus and without substantiation in fact. Oregon Ethics Opinion 2000-158, supra. Knowing consents and waivers must be obtained from all parties in these circumstances. The attorney for the passengers may wish to have independent guardians appointed for any minor children to make sure that their interests are properly and independently represented in these circumstances. All parties, including the guardians for any minor passengers, should be given the opportunity to consult with independent counsel before waiving an actual conflict.
When conflict determinative facts do not come to light until after an attorney has already begun to represent both driver and passengers, remedial measures may be required. If discovery reveals, for example, that a non-waivable conflict exists between co-clients, the attorney may be required to withdraw from representation of both driver and passengers because of the direct conflict between them. Rule 4-1.7(a); Rule 4-1.16(a) and (d), Florida Rules of Professional Conduct; Florida Ethics Opinion 95-4. Even if the attorney had only brief meetings with both driver and passengers, representation may be deemed to have begun under pertinent caselaw. In Florida, a prospective client’s subjective belief that his or her meeting with an attorney (in person or by telephone) was a meeting seeking and receiving legal advice, may create an attorney client relationship, if the client’s belief was reasonable. Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992), review dismissed, 618 So.2d 208 (Fla.1993). The test is not whether a fee was paid or an engagement agreement signed, but whether the client reasonably believed that he or she was consulting an attorney seeking legal advice. Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996).
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.