The Florida Bar
OPINION 78-17An attorney may not represent both an insurance carrier and its insured when the circumstances are such that it would be better for the insured to be held liable and then recover under his employer's policy in contribution. The multiple representation presents a conflict between the best interests of the insured and the best interests of the insurance carrier.
CPR: EC 5-14, DR 5-105
Mr. Corrigan stated the opinion of the committee:
The Committee has been asked whether an attorney who has been employed by an insurance company to represent its insured in a counterclaim for contribution in a factual circumstance in which it may be in the better interest of the insured to be held liable on the main case, but then to be able to recover under his employer's policy in the contribution case, thus creating a possible conflict at the trial between the best interests of the insured and the best interests of the insurance carrier, may continue such representation. In the particular factual situation involved, the insured wife has substantial damages. The defendant has minimal insurance coverage but the insured husband's employer has substantial insurance coverage which would be applicable on the contribution claim.
Ethical Consideration 5-14, which requires a lawyer to maintain the independence of professional judgment, prevents a lawyer from representing two or more clients who may have differing interests. Disciplinary Rule 5-105 relates to refusing to accept or continue employment if a conflict arises. Multiple employment can be permissible if it is obvious that the attorney can adequately represent the interests of each party and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment.
In the question posed, however, it is obvious that the lawyer at the trial on one hand should be arguing to minimize both the overall damages and the counter-defendant's negligence, and on the other hand, the insured might be in a better position to be found to be liable and thus be able to recover more money under his employer's policy in the contribution case. In such circumstances, the lawyer has no choice but to withdraw from the multiple representation.