If a lawyer ends up representing two parties suing each other in the same case, can the lawyer fix it by withdrawing from just one of them?

Plain-English summary

A lawyer representing a personal-injury plaintiff, seeking to create a source of recovery, also opened and represented the estate of a deceased potential tortfeasor so the estate could bring a dram-shop claim against liquor stores, while the lawyer's original client was simultaneously suing that same estate. The Committee was asked the lawyer's duties on finding himself representing both sides of the same litigation.

The opinion concluded that an attorney may not represent parties, including estates, against each other in the same litigation no matter how benign the motivation, and that such conflicts may not be waived by consent. It reasoned that each client is entitled to the undivided loyalty of counsel: the personal representative of the estate had the right to an independent evaluation of both the claim against the estate and the estate's own claim, which the lawyer suing the estate could not provide because any advice would be tainted by the desire to create a fund to pay the original client. An agreement to limit the scope of the estate work did not control, because filing a complaint carries the duty to move it forward, and independent counsel might have evaluated the claims differently.

Because each client is entitled to undivided loyalty, the opinion concluded that withdrawing from representing only one client would not suffice; the attorney must withdraw from representing both. It grounded this in the former Code provisions on conflicting interests, vigorous representation, preserving client confidences, the duty to withdraw, and avoiding the appearance of impropriety, and noted that all the standard disqualification factors would be met if the estate moved to disqualify counsel.

Currency note

This opinion was issued in 1991, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the conflict be cured by the clients consenting?

A: No. The opinion concluded a lawyer may not represent two parties against each other in the same litigation regardless of motivation, and that such conflicts may not be waived.

Q: Could the lawyer keep the original client by dropping the estate?

A: No. The opinion concluded that because each client is entitled to undivided loyalty, withdrawing from one client is not enough; the lawyer must withdraw from both.

Q: Did it matter that the lawyer's intentions were to help the first client?

A: No. The opinion concluded the prohibition applies regardless of motivation, and that the estate was entitled to independent, untainted advice the conflicted lawyer could not give.

Background and rules framework

The opinion was decided under the former Alaska Code of Professional Responsibility, the analog to today's conflict (Model Rule 1.7) and withdrawal (Model Rule 1.16) rules. It applied DR 5-105 (declining or withdrawing where independent judgment is adversely affected), DR 7-101 (zealous representation), DR 4-101 (preserving confidences), DR 2-110(B)(2) (mandatory withdrawal), DR 9-101 (avoiding the appearance of impropriety), and EC 5-1, and noted Alaska Formal Opinion 91-2 on whom an estate's lawyer represents.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-105 (declining/withdrawing where independent judgment is affected) (cf. Model Rule 1.7)
• DR 7-101 (zealous representation within the bounds of law)
• DR 4-101 (preservation of confidences and secrets)
• DR 2-110(B)(2) (mandatory withdrawal) (cf. Model Rule 1.16)

Cases:

• First American Carriers, Inc. v. Kroger, 788 S.W.2d 742 (Ark. 1990)

Other opinions cited:

• Alaska Formal Opinion 91-2: the estate's lawyer represents the personal representative

See also

• Alaska Ethics Op. 91-2: Estate Lawyer Versus Heirs Conflict
• Alaska Ethics Op. 91-3: Representing Parent and Child
• Alaska Ethics Op. 2012-3: Closely-Held Organization Owner Conflicts

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/91-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 91-5
Ethical Obligation of an Attorney to Withdraw
After Undertaking Dual Representation of Estates With
Factually Conflicting Positions in Existing Litigation
QUESTION PRESENTED
What are the ethical duties of an attorney, when the attorney after
undertaking representation of a client in personal injury litigation, undertakes
representation of the estate of a potential tortfeasor for the purpose of
preserving the claims that the estate of the potential tortfeasor might have had
against a third party in order to assure a source of recovery for the original
client?
CONCLUSION
An attorney may not represent parties, including estates, against each
other in the same litigation regardless of motivation. Such conflicts may not be
waived. Since each "client" is entitled to the undivided loyalty of counsel,
withdrawal from the representation of one, will not suffice. Attorney must
withdraw from representing both clients.
STATEMENT OF FACTS
Attorney was retained by the victim of a two car collision. The client was
without fault and suffered property damage and personal injury in amounts
which the attorney valued at between $50,000 and $100,000.
The second car was operated in an allegedly reckless manner by an
intoxicated minor. There were two other intoxicated minors in the car. The
driver and one passenger were killed. The surviving occupant suffered serious
head injuries. The driver was without insurance. Discovery disclosed that the
alcohol was purchased from a liquor store by the driver and that all of the
minors had paid for the alcohol. Suit was filed against the surviving minors,
the estate of the driver, and the estate of the deceased passenger as well as the
liquor stores involved.
In evaluating the case, the Attorney concluded that none of the surviving
individuals would be able to pay meaningful damages. Depending upon how
fault was allocated, the Attorney concluded that his client might not be able to
recover all of his damages against the liquor stores involved. The Attorney
however concluded that if he sued the estate of the deceased passenger, his
client might recover from the estate, if a dram shop suit was brought by the
estate against the liquor stores.

1

Attorney contacted the mother of the deceased passenger, advised her of
the fact that two liquor stores had been implicated and encouraged her to file
suit on behalf of the estate of her son. The Attorney also advised the mother
that the statute of limitations would run in two days. The mother asked the
Attorney to speak with her daughter who was more sophisticated and worked
for a lawyer. Attorney contacted the daughter, informed her of the statute of
limitations and the fact that he was amending his client's complaint to include
a count against her brother's estate. No estate had then been opened.
Attorney told the deceased's sister that it would be possible for his client to
open an estate as the client was a creditor but that it would be easier if
someone from the family made application. The sister told Attorney that she
did not think that she had time to hire a lawyer before the running of the
statute of limitations.
Attorney agreed to prepare the papers, opening the estate and appointing
the sister as personal representative. He would then file a complaint on behalf
of the estate against the liquor stores. It was anticipated that Attorney would
then withdraw from the representation of the estate because of the conflict
between the estate and the original client which was suing the newly opened
estate. Attorney accomplished these steps.
Attorney asked sister to find a new attorney. She indicated that she
thought that her boss would handle the matter. After a delay of five months,
Attorney contacted Sister who advised that she would send papers allowing
the attorney to withdraw with her consent and that she was abandoning both
the estate as well as the claim. Sister said that the subject was too painful for
the family and that she thought that the Attorney's conduct in contacting her
was wrong. Sister and her family intend to oppose Attorney's continued
representation of his original client.
The complaint filed on behalf of the estate was never served. The Attorney
now wishes to have the guidance of the Ethics Committee as to his duties,
having found himself in this situation.
DISCUSSION
Generally speaking, a lawyer may not represent two opposing parties in
litigation no matter how benign the circumstances. Consent of the parties is
irrelevant.1 See American Law Institute Restatement of the Law Governing
Lawyers Tentative Draft No. 4, Chapter 8 Section 209, Comment C (4/10/91).
Numerous provisions of the Code of Professional Responsibility support this
proposition.
DR 5-105 requires an attorney to decline or withdraw from representation
when it is likely that the exercise of his independent judgment will be adversely
1There is a minority view holding that in the case of no-fault divorce where there
are no issues of alimony, custody, child support or property division, the same
lawyer with consent may represent both spouses. Hazard and Hodes,
The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct
(2d ed. 1990), Section 2.2:204. See also District of Columbia Rule of Professional
Conduct 1.7, Comment <6>. The committee has not considered the
circumstances under which a lawyer may represent both spouses in a Dissolution
filed under the Alaskan Act. Needless to say, if there are disputes as to any issue,
a lawyer may not represent both spouses.
2

affected. DR 5-105(C) states that a lawyer may represent multiple clients, "if it
is obvious that he can adequately represent the interests of each 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 a
Formal Opinion 91-2, the committee published its view that a lawyer for an
estate represents the personal representative and can if fact advise the
personal representative in disputes with beneficiaries. Here, it is clear that
Attorney's first duty (rightfully so) was to the original personal injury plaintiff.
The personal representative for the Estate had the right to an independent
evaluation of the merits of the claim against the estate as well as the merits of
the claim made on behalf of the estate. It would be impossible for the lawyer
suing the estate to give independent, candid advice. Whatever advice was given
would of necessity be tainted by the desire to provide a corpus to pay damages
to the original client. Likewise, EC 5-1 provides that "The professional
judgment of a lawyer should be exercised ...solely for the benefit of his client
and free of compromising influences and loyalties. Neither his personal
interests, the interests of other clients nor the desires of third persons should
be permitted to dilute his loyalty to his client."
Nor is an agreement to limit the nature of services controlling. Attorney
has a duty under DR 7-101 to represent the interests of the estate vigorously
within the bounds of law. The agreement contemplated that at least for some
initial period, Attorney would represent the estate in its dram shop action. A
lawyer cannot undertake to file a complaint without undertaking the
responsibility of moving the matter forward. the problem is that independent
counsel may well have taken a different view of the merits of the separate
actions and may well have advised the client to sue other entities or take other
actions to preserve the estate. The client, who was the personal representative,
is entitled to the best advice of the lawyer and is entitled to look to that lawyer
to do his or her personal best to protect the interests of the estate.
The conflict of interest mandates withdrawal from all representation.
Courts will disqualify counsel in an adversary proceeding
when: (1) the moving party was previously represented by the
attorney whose disqualification he now seeks; (2) the matters
embraced within the pending lawsuit are substantially related
to the matter or the cause of action on which the attorney
previously represented the moving party; and (3) the attorney
is representing an adversary of the movant party in the
pending suit.
First American Carriers, Inc. v. Kroger, 788 S.W.2d 742 (Arkansas 1990).
It is interesting to note that in First American, the conflict was
inadvertently created and the Court accepted the fact that the law firm was
totally innocent of improper behavior. In this case, all three conditions would
be met should the Estate move to disqualify counsel.
Justification for this position within the Code of Professional
Responsibility would include the duty under DR 4-101 to preserve the
confidences and secrets of a client as well as the duty to withdraw under DR 2110(B)(2). Attorneys have a duty to avoid even the appearance of impropriety
under DR 9-101. Accordingly, it is the view of the committee that Attorney
should withdraw totally from the representation of either client.
3

Approved by the Alaska Bar Association Ethics Committee on October 3, 1991.
Adopted by the Board of Governors on October 25, 1991.
136MP1MANUL

/1/There is a minority view holding that in the case of no-fault divorce where

there are no issues of alimony, custody, child support or property division, the
same lawyer with consent may represent both spouses. Hazard and Hodes,
The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct
(2d ed. 1990), Section 2.2:204. See also District of Columbia Rule of
Professional Conduct 1.7, Comment <6>. The committee has not considered
the circumstances under which a lawyer may represent both spouses in a
Dissolution filed under the Alaskan Act. Needless to say, if there are disputes
as to any issue, a lawyer may not represent both spouses.
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