Can one attorney represent both a husband-driver and his wife-passenger suing a third party for a crash, and also handle the estate of their child who died in the same accident?

Plain-English summary

An attorney was asked to represent a husband-driver and his wife-passenger in an automobile negligence case against a third party, where liability appeared to rest substantially with that third party. The husband-driver also sued, as administrator ad prosequendum and general administrator, for the couple's infant child who was killed in the accident. The attorney advised that the wife-passenger might recover a judgment in excess of the defendant's policy limit, but that she did not wish to have separate counsel and would in no case assert a claim against her husband; he also proposed substituting the wife as representative of the deceased child's estate. The defendant had filed a counterclaim for contribution against the husband-driver.

The Committee concluded that under all the circumstances it should not be necessary for the wife to have a separate attorney. It explained that its Opinions 156, 188, 248, and 253 permit exceptions to the general proscription on multiple employment exactly to the extent allowed under DR 5-105(C), and that the parties here were adults capable of making an intelligent and informed judgment on the basis of full disclosure of the facts and of the possible effect of the joint representation.

As to representation of the deceased child's estate, the Committee thought it appropriate to leave the matter to the court. It observed that the court might feel an independent representative should be designated, and that such a person would be free to select counsel of his own choosing, so the Committee deferred that question to judicial attention.

Currency note

This opinion was issued in 1977, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It applied the multiple-employment rule DR 5-105 and its consent exception DR 5-105(C); in current New Jersey terms concurrent-conflict questions correspond to RPC 1.7. Treat this page as historical context, not current guidance.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 one lawyer represent both a driver and a passenger suing a third party?

A: Under this opinion, yes where liability rests substantially with the third party and the adult clients give informed consent after full disclosure. The wife also stated she would not claim against her husband.

Q: Did the over-the-policy-limit risk to the wife require separate counsel?

A: The Committee concluded it did not require it under the circumstances, treating the informed consent of adult clients under DR 5-105(C) as sufficient, given the wife's choice not to assert a claim against her husband.

Q: Who should represent the deceased child's estate?

A: The Committee left that to the court, noting it might designate an independent representative who would then choose his own counsel.

Background and rules framework

The opinion applied DR 5-105 (multiple employment that may involve adverse interests) and its consent exception DR 5-105(C), drawing on its Opinions 156, 188, 248, and 253, and deferred the estate-representation question to the court. In current New Jersey terms, concurrent-conflict questions are governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; concurrent conflicts); DR 5-105 and DR 5-105(C) as in effect 1977

Other opinions cited:

• NJ ACPE Opinion 156, 92 N.J.L.J. 481 (1969); Opinion 188, 93 N.J.L.J. 789 (1970); Opinion 248, 96 N.J.L.J. 93 (1973); Opinion 253, 96 N.J.L.J. 449 (1973)

See also

• NJ ACPE Op. 613: Withdrawing Attorney's Referral Fee in a Driver-Passenger Conflict
• NJ ACPE Op. 386: Representing a City and Its Medical Center Together
• NJ ACPE Op. 378: Old Firm Ties and a Post-Divorce Motion

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp373-1.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.

100 N.J.L.J. 646, July 21, 1977

OPINION 373

Conflict of Interest
Suing For Husband-Driver and
Wife-Passenger-Also Child Victim

An attorney has been asked to represent a husband-driver and the wife-passenger in an automobile negligence case against a third person where it appears that the liability resides substantially with the third person. In addition, the husband-driver also sues as administrator ad prosequendum and general administrator of the infant child of the couple who was killed in the accident.

The inquirer informs us that there is a possibility that the wife-passenger might recover a judgment in excess of the policy limit of the defendant but that she does not wish to have separate counsel and in no case is willing to assert a claim against her husband. The inquirer further proposes that the wife ought to be substituted as the representative of the estate of the deceased child. A counterclaim for contribution has been filed by the defendant against the husband-driver.

Under all the circumstances it should not be necessary for the wife to have a separate attorney. Opinions 156, 92 N.J.L.J. 481 (1969); 188, 93 N.J.L.J. 789 (1970); 248, 96 N.J.L.J. 93 (1973) and 253, 96 N.J.L.J. 449 (1973) permit exceptions to the general proscription of multiple employment exactly to the extent allowed under DR 5-105(C). The parties in the given situation are adults, capable of making an intelligent and informed judgment on the basis of the "full disclosure of the facts and of the possible effect of such representation."

As to the representation of the estate of the deceased child, we think it appropriate to leave this matter to the court. It may be that the court will feel that an independent representative should be designated, and that person would, of course, be free to select counsel of his own choosing. This committee feels obliged to defer the matter to judicial attention.