Can the lawyer for an injured client also represent the client's health insurer in pursuing its subrogation claim against the same tortfeasor?

Plain-English summary

A lawyer represented an injured client on her personal-injury claim. Her health carrier, which had paid ERISA benefits and held a subrogation authorization, wanted to retain the same lawyer to pursue reimbursement directly from the tortfeasor. The inquiry asked whether the lawyer could represent both the client and the carrier.

The opinion concluded that the lawyer could, under then-current Rule 5.1(b), if the lawyer reasonably believed the representation would not be adversely affected and the client consented after full disclosure of the implications of the common representation. The opinion added that the lawyer has a continuing obligation to evaluate the situation and must withdraw from representing both parties once an actual conflict of interest develops, unless one party consents, after full disclosure, to the lawyer's continued representation of the other, citing Rule 5.1(c) and (d). On the third question, the opinion concluded that the lawyer could continue representing the injured client despite a conflict only if the four conditions for waiver of a future conflict set out in RPC 168 were met at the time the conflict arose.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: Can a lawyer represent both an injured client and the client's subrogated health insurer?

A: Yes, with consent. The opinion concluded that joint representation is permissible under Rule 5.1(b) if the lawyer reasonably believes neither representation will be adversely affected and the client consents after full disclosure.

Q: What happens if an actual conflict develops between the client and the carrier?

A: The opinion held that the lawyer must withdraw from representing both parties when an actual conflict arises, unless one party consents, after full disclosure, to the lawyer's continued representation of the other, under Rule 5.1(c) and (d).

Q: Can the lawyer keep representing the injured client through an arranged future-conflict waiver?

A: Only on RPC 168's terms. The opinion concluded the lawyer could continue representing the injured client if the four conditions for a future-conflict waiver in RPC 168 were met at the time the conflict arose.

Background and rules framework

The opinion applied North Carolina Rule 5.1, the then-current conflict-of-interest provision corresponding to Model Rule 1.7: subsection (b) governed undertaking the common representation with the client's consent after full disclosure, and subsections (c) and (d) governed withdrawal once an actual conflict arose. For continued representation of one party after a conflict, the opinion incorporated the advance-waiver conditions of RPC 168.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current client)
• North Carolina Rule 5.1(b), (c), (d)

Other opinions cited:

• North Carolina RPC 168 (conditions for waiver of a future conflict of interest)

See also

• NC Ethics Op. RPC 168: waiver of a possible future conflict of interest
• NC Ethics Op. RPC 177: representing the insured, insurer, and UIM carrier
• NC Ethics Op. 2000 Formal Op. 2: representing the remaining spouse in a joint Chapter 13

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-170/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 170 (Revised).

Inquiry #1:

Attorney A represents Victim B with respect to her personal injury claim. Carrier C provides health insurance benefits under an ERISA health insurance plan. Victim B has signed a "subrogation authorization form" for Carrier C which purports to give Carrier C the right to seek reimbursement directly from Tortfeasor D for benefits paid on behalf of Victim B because of her injuries. For purposes of effecting this recovery from Tortfeasor D, Carrier C wants to retain Attorney A to also represent Carrier C. May Attorney A represent both Victim B and Carrier C?

Opinion #1:

Yes, if Attorney A reasonably believes the representation will not be adversely affected and the client consents after full disclosure of the implications of the common representation. Rule 5.1(b).

Inquiry #2:

If so, what must Attorney A do if an actual conflict of interest arises in representing both parties?

Opinion #2:

Attorney A has a continuing obligation to evaluate the situation and must withdraw from the representation of both parties upon the development of an actual conflict of interest, unless one party consents, after full disclosure, to Attorney A's continued representation of the other party. Rule 5.1(c) and Rule 5.1(d).

Inquiry #3:

Is there any way, by advance agreement with Carrier C or otherwise, for Attorney A to ethically continue representing Victim B in the event that a conflict of interest arises?

Opinion #3:

Yes, provided the four conditions for a waiver of a future conflict of interest set forth in RPC 168 are met at the time that a conflict arises. See Rule 5.1(c).