Can a lawyer who routinely defends an insurer's insureds take a new case suing one of that insurer's insureds, and does it matter if the lawyer also represents the insurer directly?

Plain-English summary

Attorney A regularly defended a number of unrelated matters for an insurance company and its insureds. The inquiry asked, first, whether A could represent Client B in a suit that would have to be filed against an insured of that company, and second, whether the answer changed if A also represented the insurance company itself, which was a named defendant in an unrelated suit.

On the first question, the opinion concluded that, while A owes some duty of loyalty to the insurer when defending its insureds, the insureds rather than the insurer are A's primary clients, citing ABA Informal Opinion 822 (1965). A may therefore represent Client B even though B anticipates suing an insured of the company and even though A routinely defends other insureds. On the second question, the opinion concluded that where the insurer is itself a named defendant in a case A handles, A should not agree to represent Client B in a suit against the insurer's insured unless A reasonably believes the representation will not adversely affect the insurer's interest and both Client B and the insurer consent to the multiple representation after full disclosure of the risks, citing Rule 5.1(a).

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 5.1(a), conflicts of interest) has since been renumbered and revised (the corresponding Model Rule is 1.7). 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 Treat this page as historical context, not current guidance.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: Who is the lawyer's primary client when defending an insurer's insured?

A: The opinion concluded that the insured, not the insurer, is the lawyer's primary client, citing ABA Informal Opinion 822.

Q: Can the lawyer sue another insured of the same insurer?

A: Yes. The opinion concluded the lawyer may represent a client suing an insured of the insurer even while routinely defending other insureds of that insurer.

Q: What changes if the lawyer also represents the insurer as a defendant?

A: The opinion concluded the lawyer then needs reasonable belief that the new suit will not adversely affect the insurer and the consent of both clients after full disclosure, citing Rule 5.1(a).

Background and rules framework

The opinion applied North Carolina Rule 5.1(a), the conflict-of-interest provision (corresponding to Model Rule 1.7), and drew on ABA Informal Opinion 822 (1965) for the principle that the insured is the lawyer's primary client. The analysis turned on whether the insurer was itself a client in the matter: defending its insureds did not make the insurer a client adverse to a new suit, but directly representing the insurer as a defendant did, triggering the consent requirements.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(a) (conflicts of interest)
• MR 1.7 (concurrent conflicts of interest)

Other opinions cited:

• ABA Informal Opinion 822 (1965): the insured, not the insurer, is the defense lawyer's primary client

See also

• NC Ethics Op. RPC 103: representation of insured and insurer
• NC Ethics Op. RPC 112: representation of insured and insurer
• NC Ethics Op. RPC 110: attorneys retained by liability and UIM insurers

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-56/

Original opinion text

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

Inquiry:

May Attorney A represent Client B if suit will have to be filed against Defendant Z, who is insured by Insurance Company, if Attorney A is currently defending a number of unrelated matters for Insurance Company and its insureds?

Will the answer change if Attorney A is representing Insurance Company, which is named as a defendant in an unrelated lawsuit?

Opinion:

(1) While Attorney A owes some duty of loyalty to Insurance Company in cases in which Attorney A defends insureds of Insurance Company, the insureds, rather than the Insurance Company, are considered to be Attorney A's primary clients. See ABA Informal Opinion 822 (1965). Accordingly, Attorney A may represent Client B, even though Client B anticipates filing suit against an insured of Insurance Company and even though Attorney A routinely defends other insureds of Insurance Company.

(2) Where Insurance Company is a named defendant in a case handled by Attorney A, Attorney A should not agree to represent Client B in a suit against an insured of Insurance Company unless Attorney A reasonably believes that the representation will not adversely affect the interest of Insurance Company and both Client B and Insurance Company consent to the multiple representation after full disclosure of all the risks involved. See Rule 5.1(a).