Can one lawyer represent both the driver and the passenger-owner against the other driver if they sign waivers agreeing not to sue each other?

Plain-English summary

The inquiry asked about the propriety of representing both the driver and the passenger (who was also the owner of the vehicle) against the driver-owner of another vehicle, where the driver and passenger-owner had agreed not to sue one another for their damages and would sign appropriate waivers.

The Committee held the proposed representation improper notwithstanding consent. It relied on its Opinion 156, which held it improper for an attorney to represent two or more joined parties to litigation where the attorney's opinion about whether valid claims could be asserted might be in error. Where a passenger is injured, the passenger (and here also the owner) has a possible claim against the driver, and the facts at trial may bring this out even if the parties believe otherwise at the interview. Opinion 156 had interpreted the Supreme Court's directive prohibiting such multiple representation and made clear the rule cannot rest on the attorney's judgment of the facts; public policy precludes an exception by waiver and consent, because should a conflict develop the attorney would have to retire from all the representations, with consequent delay, interruption, and expense. The Committee concluded that consent and waiver do not permit an attorney to represent two or more parties who may have potential claims against one another arising out of the same transaction.

Currency note

This opinion was issued in November 1970, 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, a Supreme Court directive, and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions; New Jersey's current rules permit certain conflicts to be waived with informed consent in some circumstances, so the categorical no-waiver rule stated here may not reflect current law. The conflict principle it applied is now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a waiver let one lawyer represent both a driver and an injured passenger?

A: No. The Committee held that consent and waiver do not permit representing two or more parties who may have potential claims against one another from the same transaction.

Q: Why isn't the parties' agreement not to sue enough?

A: Because the facts at trial may reveal a claim the parties did not anticipate, and the Committee said the rule cannot rest on the attorney's judgment of the facts.

Q: What happens if a conflict later develops?

A: The Committee noted the attorney would have to withdraw from all the representations, causing delay, interruption, and expense, which is part of why waiver is not allowed.

Background and rules framework

The opinion applied the Committee's multiple-representation rule from Opinion 156 and the Supreme Court's directive, treating a passenger's potential claim against the driver as a non-waivable conflict in the same-transaction setting. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 156, 92 N.J.L.J. 481 (1969)

Court directives:

• Supreme Court directive, 91 N.J.L.J. 81 (1968) (multiple representation of driver and passenger)

See also

• NJ ACPE Op. 181: A Referral Fee That Splits a Driver and Passenger
• NJ ACPE Op. 212: Dual Representation of a Buyer and Seller

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp188-1.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.

93 N.J.L.J. 789, November 12, 1970

OPINION 188

Conflict of Interest Representing Driver and Passenger Waiver

This inquiry asks the propriety of representing both driver and passenger (who is also the owner of the vehicle) against the driver-owner of another vehicle. The driver and passenger-owner have agreed that they do not intend to sue one another for the damages suffered in the collision; and they will sign appropriate waivers.

We hold that such proposed representation is improper notwithstanding consent. In our Opinion 156, 92 N.J.L.J. 481 (1969), we held that it was improper for an attorney to represent two or more parties to litigation where all such parties so joined and the attorney's opinion as to whether or not valid claims could be asserted might be in error. Where a passenger is injured, the passenger (and as owner too) has a possible claim against the driver. The facts at the trial may bring this out even though the parties believe to the contrary at the interview. In our Opinion 156, supra, we interpreted the directive of the Supreme Court, 91 N.J.L.J. 81 (1968), prohibiting such multiple representation; and we made it clear that the rule cannot be based upon the attorney's judgment of facts. Public policy precludes an exception by waiver and consent. Should conflict develop, the attorney who undertakes to act for several plaintiffs must retire from all representations with consequent delay, interruption of proceedings and expense.

We hold that consent and waiver do not permit an attorney to represent two or more parties who may have potential claims against one another arising out of the same transaction.