Can a lawyer who sues an insurer's policyholders for personal injury clients also take real estate work from that insurer's mortgage department?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer who represented personal injury plaintiffs in suits against insureds of a major automobile insurer was offered real estate and mortgage work for that insurer's mortgage department, a unit that operates like a bank and has no direct connection to the auto-insurance division. He asked whether he could accept the offer if he told his personal injury clients and obtained "a waiver of no objection," adding that he was sure his judgment on the personal injury cases would not be affected. The committee analyzed two questions under DR 5-105.
First, it found the predicate for consent missing. The inquiry did not state that the insurer had consented to the lawyer continuing adverse representation, and what the plaintiffs gave looked like an insufficient consent after insufficient disclosure. The committee rejected the idea that DR 5-105 does not apply because the matters and corporate units differ: the SJC's decision in The McCourt Co. v. FPC Properties treated as irrelevant that the suits were unrelated and that the client was a corporation with subsidiaries, holding that a lawyer's undivided loyalty bars representing and suing a client at the same time without the consent of all concerned. The committee also noted a question of who could consent for the insurer (the mortgage department might, but the claims department might not) and that a "waiver of objection" by the plaintiffs is not the same as consent.
Second, and harder, even with proper consent DR 5-105(C) requires that it be "obvious" the lawyer can "adequately represent" all interests, a question McCourt did not reach but the committee had addressed before (Opinions 80-1, 80-2, 80-10). The committee concluded there were too many possibilities of mischance for that to be obvious here: the lawyer might consciously or unconsciously press the plaintiffs' claims less zealously to protect the prospect of long-term insurer work, or might overcompensate by taking unduly uncompromising positions to avoid any suspicion of being influenced. Applying the objective "obviousness" standard, and without judging whether this lawyer would actually be influenced, the committee found the potential to distort his independent judgment too great, so it was not obvious he could adequately represent all parties if he accepted the employment.
Currency note
This opinion was issued in 1985, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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: Does it matter that the lawsuits and the insurer's mortgage work are completely unrelated?
A: Per the opinion, no. Relying on McCourt, the committee said the undivided-loyalty principle bars representing and suing the same client at once without all-party consent, even where the matters are unrelated and different corporate units are involved.
Q: Is a client's "waiver of objection" the same as consent?
A: No. The committee said a "waiver of objection" by the personal injury plaintiffs is not equivalent to the informed consent DR 5-105 requires, and it questioned whether the insurer had consented at all or who could consent for it.
Q: Would full consent have made the dual work permissible?
A: Not here. The committee said even with consent, DR 5-105(C) requires that it be objectively "obvious" the lawyer can adequately represent each, and the risk of distorting his judgment for the plaintiffs was too great to meet that test.
Background and rules framework
The opinion applied DR 5-105(A) and (C) (declining employment involving differing interests; the consent-plus-objective "obviousness" test for multiple representation), which correspond today to Model Rule 1.7 (concurrent conflicts of interest and informed consent). The committee relied on the SJC's undivided-loyalty holding in The McCourt Co. v. FPC Properties and its own prior multiple-representation opinions.
Citations and references
Rules of Professional Conduct:
- DR 5-105(A) and (C) / Model Rule 1.7 (concurrent conflicts; consent and objective test)
Cases:
- The McCourt Co., Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982) (undivided loyalty bars representing and suing a client at once without consent)
Other opinions cited:
- MBA Opinions 80-1, 80-2, 80-10: multiple representation barred despite consent where adequacy was not "obvious"
See also
- MA Bar Ethics Op. 86-2: Joint defense of a town and its police in a Section 1983 suit
- MA Bar Ethics Op. 88-1: A firm representing a school board while opposing town police
Source
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