Can a lawyer sue a manufacturer for an injured worker when the lawyer's firm represents the worker's employer, who may be impleaded as a third-party defendant?

Plain-English summary

The committee considered whether a lawyer could represent an injured employee in a products-liability action against a machine's manufacturer when the lawyer's firm already represented the employee's employer, as an impleaded third-party defendant, in a similar action. Because the manufacturer would likely implead the employer again, the committee found the conflict real: there was at least a possibility, and perhaps a likelihood, that the firm's existing client would be drawn into the new case as an adverse third-party defendant.

The committee grounded the answer in the duty of undivided professional judgment (EC 5-1) and the rule that a lawyer should decline employment where his independent judgment for a client is likely to be adversely affected (DR 5-105(A)), together with the duty to preserve the employer's confidences and secrets and not use them to its disadvantage (EC 4-5, DR 4-101(B)). It quoted EC 5-15's caution that a lawyer should resolve all doubts against representing multiple clients with potentially differing interests, and that refusing such employment at the outset is preferable to a later forced withdrawal. It also invoked N.Y. County 450 (1956), which bars an attorney, while representing a client, from accepting employment from an adverse party even in a wholly unrelated matter.

The committee drew the line by likelihood of impleader. If the employer is really likely to be impleaded, the lawyer should decline. If impleader is only a remote possibility, the lawyer may take the case, but only if the client understands that the lawyer will withdraw if the employer is impleaded and knowingly consents to the resulting expense and delay. Either way, if the lawyer must decline, no partner or associate of the firm may accept the employment (DR 5-105(D), citing the opinions collected in N.Y. State 426 (1976)).

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7 and imputation by Rule 1.10). 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 Treat this page as historical context, not current guidance.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: Why is suing the manufacturer a conflict if the lawyer's firm only represents the employer in a different case?

A: The committee reasoned that the manufacturer would likely implead the employer as a third-party defendant in the new action, making the firm's existing client an adverse party in the same litigation, which compromises the lawyer's independent judgment (DR 5-105(A); EC 5-1).

Q: Can the lawyer take the case if impleader seems unlikely?

A: Under the opinion, only with informed consent. If impleader is remote, the lawyer may proceed if the client understands the lawyer will withdraw should the employer be impleaded and knowingly accepts the resulting expense and delay.

Q: If the lawyer must decline, can a partner or associate take the matter instead?

A: No. The committee applied DR 5-105(D): where one lawyer in a firm is disqualified, every partner and associate is disqualified, citing the opinions collected in N.Y. State 426 (1976).

Background and rules framework

The opinion applies the then-current New York Code's conflict provisions: EC 5-1 and EC 5-15 (undivided loyalty and the caution against multiple representation with differing interests), DR 5-105(A) (declining employment that impairs independent judgment), DR 5-105(D) (firm-wide imputation), and EC 4-5 with DR 4-101(B) (preserving and not misusing a client's confidences). The current analogues are Rule 1.7 (concurrent conflicts), Rule 1.10 (imputation), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.10 (imputation of conflicts)
• MR 1.6 (confidentiality of information)
• NY EC 4-5, EC 5-1, EC 5-15; DR 4-101(B), DR 5-105(A), DR 5-105(D)

Other opinions cited:

• N.Y. County 450 (1956): no employment from an adverse party while representing a client, even in an unrelated matter
• N.Y. State 426 (1976): collected imputation opinions under DR 5-105(D)
• N.Y. State 410 (1975); N.Y. State 205 (1971); N.Y. State 74 (1968): adverse-interest representation

See also

• NY State Bar Op. 426: A referral-service administrator taking its referrals
• NY State Bar Op. 436: A firm conflict from an associate's prior representation
• NY State Bar Op. 462: A public defender's office and co-defendant conflicts

Source

• Landing page: https://nysba.org/opinion-433/