Ezel / Ethics Opinions / ABA
ABA 2004-12-08

Can a lawyer who represents a liability insurer also represent a plaintiff suing one of that insurer's policyholders?

Short answer: Usually, unless the insurer is a party or information is at stake. The opinion concludes the simultaneous representation is not directly adverse to the insurer unless the insurer is a named party, but a material-limitation conflict can arise requiring each affected client's written informed consent.
Currency note: this opinion is from 2004
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 05-435: Suing the Insured of a Client Insurer

Short answer: The opinion concludes that a lawyer's representation of a plaintiff against an insured defendant is not directly adverse to the lawyer's client liability insurer, and so creates no concurrent conflict, unless the insurer is itself a named party or the matter requires disqualifying testimony or discovery from the insurer; even without direct adversity, a conflict can arise if there is a significant risk the plaintiff's representation will be materially limited by the lawyer's responsibilities to the insurer, in which case the lawyer may proceed only with each affected client's informed consent confirmed in writing.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses a lawyer who represents a liability insurer in some matters and, at the same time, represents a plaintiff in a separate suit against a person the insurer insures. The question is whether that combination creates a concurrent conflict under Rule 1.7, which bars a representation involving either direct adversity to another current client or a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client.

On direct adversity, the committee concludes that the simultaneous representation does not, "without more, result in 'direct adversity' under Rule 1.7(a)(1) unless the client liability insurer providing defense and indemnity to the defendant in the second case also is a named party in the litigation." The committee reasons that mere economic adversity between the insurer and the plaintiff in an unrelated matter "is not, in the opinion of the Committee, the sort of direct adversity that constitutes a concurrent conflict." Where the lawyer would need to cross-examine or take discovery from the insurer to represent the plaintiff effectively, that can rise to disqualifying direct adversity, or at least create a risk of material limitation.

On material limitation, the committee makes the analysis fact-specific. A conflict can arise if the lawyer's concern for her continuing relationship with the insurer "poses a significant risk that she will hold back or otherwise act to the disadvantage of the plaintiff." The committee also flags that confidential information the lawyer acquired about the insurer's business practices, such as its claims-handling and case-evaluation methods, could materially help the plaintiff, and that using or revealing such information could violate Rules 1.6, 1.8, or 1.9. If a concurrent conflict exists, the lawyer may proceed only if she reasonably believes she can provide competent and diligent representation to each affected client and each gives informed consent confirmed in writing; otherwise withdrawal from one or both matters may be required.

In practice

Under this opinion, and under the Model Rules as they stood at the time, a lawyer is not automatically conflicted out of suing an insurer's policyholder while representing the insurer elsewhere; the key triggers are whether the insurer is a named party, whether the lawyer must examine the insurer, and whether the lawyer holds insurer information that would advantage the plaintiff. The opinion makes material-limitation determinations fact-specific and routes any consentable conflict through written informed consent from each affected client.

Common questions

Q: I represent an insurer in some cases. Can I take a plaintiff's case against someone that insurer insures?

A: Usually yes, with a caveat. The opinion concludes the simultaneous representation is not direct adversity "unless the client liability insurer . . . also is a named party in the litigation," but a material-limitation conflict may still arise.

Q: Isn't the insurer's economic interest enough to create a conflict?

A: No. The committee stated that "economic adversity alone between the insurer and the plaintiff in the second action is not . . . the sort of direct adversity that constitutes a concurrent conflict of interest."

Q: What if I'd have to depose or cross-examine the insurer?

A: That can create a conflict. The opinion warns the lawyer may "hold back or otherwise act to the disadvantage of the plaintiff" to protect her insurer relationship, which is a material-limitation risk.

Q: If there is a conflict, can I still take the case?

A: Only with consent. The opinion permits proceeding if the lawyer "reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, and each affected client gives informed consent" confirmed in writing.

Background and rules framework

The opinion interprets Model Rule 1.7, including 1.7(a)(1) (direct adversity), 1.7(a)(2) (significant risk of material limitation), and 1.7(b) (conditions for proceeding by consent), with Comments [6], [8], and [24]. It considers Rules 1.6, 1.8(b), and 1.9 on the use of client information, Rule 1.10 on imputation, and the definitions in Rule 1.0. It builds on Formal Opinion 92-367 regarding examining a client as an adverse witness.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.7, including 1.7(a)(1), 1.7(a)(2), 1.7(b), and Comments [6], [8], [24] (concurrent conflicts)
  • ABA Model Rules 1.6, 1.8(b), 1.9 (use of client information)
  • ABA Model Rule 1.10 (imputation)
  • ABA Model Rule 1.0 (terminology; informed consent, confirmed in writing)

Other opinions cited:

  • ABA Formal Op. 92-367 (1992): examining a client as an adverse witness

See also

Source