Can one attorney represent both the driver and the passengers in a suit against another driver, and does it matter if a passenger is the driver's child?

Plain-English summary

The Committee was asked to apply a Supreme Court directive on representing both a driver and a passenger in an automobile negligence case. The directive (91 N.J.L.J. 81) states that, because of the conflict inherent in the situation, an attorney should not represent both the driver of a car and his passenger in an action against another driver, unless there is a legal bar to the passenger suing his own driver (for example, husband and wife, unemancipated child and parent, or co-employees injured in the course of employment). Where no such bar exists and a crossclaim or counterclaim is made by the other driver, a conflict arises and the attorney should not be permitted to continue representing either client.

A long-time family attorney asked whether he could represent the driver (Mr. X) and all the passengers, who were his infant daughter, his daughter's infant friend, and his adult sister, where the police investigation concluded the other driver (Mr. Y) was solely responsible and there appeared to be no valid claim against Mr. X. The Committee deemed it improper for the attorney to represent both the driver and his daughter's friend and his adult sister, even if a counterclaim for contribution against the driver were frivolous, because there is no legal bar to those passengers suing their own driver. It reasoned that the attorney should not have to judge the negligence issue or whether a counterclaim would be frivolous, since the facts may not always be clear.

The Committee held the rule differs for the driver's unemancipated infant daughter. The parent-child relationship brings the Supreme Court directive into effect and the rule of Hastings v. Hastings, where the Court held that sound public policy precludes suits between a father and his unemancipated minor child because of the possibility of collusion and breakdown of family integrity. Accordingly, the attorney may represent the driver and his infant daughter together, and the Committee noted this conclusion reinforces rather than dilutes the Supreme Court directive.

Currency note

This opinion was issued in July 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and the Supreme Court's directive. It also predates the 1984 Rules of Professional Conduct and all later revisions, and the intra-family tort immunities it relied on (Hastings v. Hastings) have since been substantially modified by later case law. The multiple-client conflict it addressed is now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules and current intra-family immunity law before relying on any specific point mentioned here.

Common questions

Q: Can one lawyer represent a driver and his passenger in a suit against another driver?

A: Generally no, where the passenger is legally free to sue the driver. The Committee, applying the Supreme Court directive, found it improper to represent the driver together with passengers (an adult sister, a child's friend) who could sue him.

Q: Does it matter that a counterclaim against the driver looks frivolous?

A: No. The Committee held the representation improper even if a contribution counterclaim would be frivolous, reasoning the attorney should not have to judge the negligence issue, since the facts are not always clear.

Q: Can the lawyer represent the driver and his own child together?

A: Yes, for an unemancipated infant child. The Committee held the parent-child immunity (Hastings v. Hastings) bars the child's suit against the parent, so no conflict prevents joint representation of the driver and his infant daughter.

Background and rules framework

The opinion applied the Canons of Professional Ethics and the Supreme Court's directive on driver-passenger representation, keyed to whether a legal bar (such as intra-family immunity under Hastings v. Hastings) prevents the passenger from suing the driver. In current New Jersey terms the multiple-client conflict analysis falls under RPC 1.7.

Citations and references

Cases:

• Hastings v. Hastings, 33 N.J. 247 (1960)

Court directives:

• Supreme Court directive on representing driver and passenger, 91 N.J.L.J. 81 (February 8, 1968)

See also

• NJ ACPE Op. 188: Representing Driver and Passenger With a Waiver
• NJ ACPE Op. 253: Representing the Husband Per Quod and the Wife Passenger
• NJ ACPE Op. 373: Suing for a Husband-Driver and Wife-Passenger Over a Deceased Child

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp156-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 481, July 24, 1969

OPINION 156

Conflict of Interest Representing Driver and Passenger

A request has been made to interpret the applicability of a Supreme Court directive regarding a potential conflict of interest where an attorney represents both driver and passenger in an automobile negligence case.

The Supreme Court directive, set forth at 91 N.J.L.J. 81 (February 8, 1968) provides as follows:

The Supreme Court is of the view, because of the conflict of interest inherent in the situation, that an attorney should not represent both the driver of a car and his passenger in an action against the driver of another car, unless there is a legal bar to the passenger suing his own driver, as for example, where they are husband and wife, unemancipated child and parent, or employees of the same employer and the accident occurred in course of their employment. Where an attorney does represent both a driver and his passenger and no such legal bar exists, if a crossclaim or counterclaim is made by the other driver, a conflict of interest arises and the Supreme Court has advised the Assignment Judges that the attorney should not be permitted to continue to represent either the driver or his passenger.

An attorney who has represented a family for a long period of time inquires whether he may represent the driver and all passengers where suit is instituted involving these facts:

Mr. X is the driver of the vehicle in which his infant daughter, her infant friend, and his adult sister are passengers. He is driving in a southerly direction on a four-lane divided highway. On that highway the two southbound lanes are separated from the two northbound lanes by a two-foot high divider and in some instances also a grassy island. While proceeding at a normal rate of speed in the right-hand (slow) southbound lane, the X vehicle is struck by the vehicle of Mr. Y which had been proceeding in a northerly direction and had suddenly crashed into, along and then eventually over the dividing barrier into the further northbound lane. Serious injuries were sustained by all persons in the X vehicle. Police investigation, including police interrogation of disinterested eyewitnesses concludes that Y was solely responsible for the accident and that in fact there were traces of alcohol on Y's breath. The accident happened so quickly that it was impossible for Mr. X, or any reasonably prudent person, to have avoided collision with the Y vehicle. Under these facts there obviously can be no valid or legal claim against Mr. X and none of the passengers in the X vehicle either desires or intends to make any claim of any kind against Mr. X.

We deem it improper for the attorney to represent both the driver and his daughter's friend and his sister even if a frivolous counterclaim for contribution against the plaintiff's driver should be made by Y's carrier. This does not apply, however, to the driver's infant daughter.

The difficulty presented is whether the attorney should judge the issue of negligence or whether a counterclaim would be frivolous. Conceivably, there may be situations where the attorney's opinion as to a "frivolous claim" would be in error. The facts may not always be as clear as those presented.

Prudence dictates that the attorney should not appear for both driver and his daughter's infant friend or adult sister. There is no legal bar to suit by these passengers against their own driver (see Supreme Court directive, supra). The rule may be different, however, in the case of the driver's infant daughter. The relationship of parent and unemancipated child brings into effect the Supreme Court directive, supra, and the rule laid down in Hastings v. Hastings, 33 N.J. 247 (1960), where Justice Hall said (at p. 253):

The possibility of collusion, and the corollary of breakdown of most desirable individual integrity within the family frequently involving children as well is so great in so many cases of the kind before us that we feel constrained to conclude, in conjunction with the other considerations previously mentioned, that sound public policy precludes their prosecution [i.e., between father and unemancipated minor child].

The conclusion herein stated will reinforce and not dilute or alter the Supreme Court directive quoted above.