Can one lawyer represent two plaintiffs injured in the same accident against the same defendant when there will not be enough money to pay both claims in full?
NY State Bar Ethics Opinion 639: Two plaintiffs against one defendant with insufficient assets
Short answer: The opinion concluded that two plaintiffs injured in the same occurrence have differing interests when the defendant's available assets cannot satisfy both claims in full, so a single lawyer must decline the dual representation unless it is obvious the lawyer can adequately represent both and each plaintiff consents after full disclosure.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer represented X, who was seriously injured in a fire, in a suit against the defendant allegedly responsible. Y, injured in the same fire, sought to retain the same lawyer for a separate suit against the same defendant. Neither X nor Y caused the fire or the other's injuries, but the lawyer knew the insurance and other assets available would be insufficient to satisfy both claims in full. The question was whether the lawyer could take on both representations.
The committee analyzed the matter under DR 5-105 (declining employment that involves differing interests) and DR 5-106 (aggregate settlements). It explained that representing multiple plaintiffs is not prohibited per se, but is proper under DR 5-105(C) only where either the representation is not likely to involve differing interests, or it is obvious the lawyer can adequately represent both and each consents after full disclosure. The Code's definition of "differing interests" reaches not only directly adverse claims but also inconsistent and other interests that adversely affect a lawyer's loyalty. The committee concluded that X's and Y's interests would be inconsistent, and thus "differing," because the available assets were likely insufficient to satisfy the judgments they might realistically obtain in the aggregate, so a recovery by one would reduce what was available to the other. It concurred with Alabama Opinion 82-591 and cited Colorado Opinion 58 and Matter of Guardianship of Lauderdale.
Having found differing interests, the committee said the lawyer must either decline or obtain consent under DR 5-105(C). Consent works only if it is obvious the lawyer can adequately represent both: for example, where both claims are pursued zealously and the plaintiffs expect to divide the available assets in proportion to their judgments or by agreement. If it is not obvious the lawyer can adequately represent both (for instance, where one client's damages vastly exceed the other's), or if either client does not consent, the lawyer may not proceed. The committee added that DR 5-106 separately bars an aggregate settlement of multiple clients' claims unless each consents after being told of all the claims, the total amount, and each person's participation, and that a representation proper at the outset may still require withdrawal if an aggregate settlement proposal places the clients in irreconcilable conflict.
Currency note
This opinion was issued in 1992, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on conflicts of interest and aggregate settlements have since been recast in Rules 1.7 and 1.8(g). 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: Can one lawyer represent two plaintiffs hurt in the same accident against the same defendant?
A: Not where the defendant's assets cannot satisfy both claims in full. The committee held that insufficient assets make the plaintiffs' interests "differing," so the lawyer must decline unless the DR 5-105(C) consent conditions are met.
Q: When can the lawyer proceed with consent?
A: Only if it is obvious the lawyer can adequately represent both and each consents after full disclosure, such as where both claims are pursued zealously and the plaintiffs agree to divide recoveries in proportion to their judgments.
Q: What does the lawyer have to disclose before an aggregate settlement?
A: Under DR 5-106, the lawyer may not make an aggregate settlement unless each client consents after being advised of all the claims involved, the total settlement amount, and each person's participation in it.
Background and rules framework
The opinion interpreted New York's former Code: DR 5-105(A) and (C) (declining or accepting representation of differing interests, and the consent exception) and DR 5-106 (aggregate settlements of multiple clients' claims), informed by the Ethical Considerations on independent judgment (EC 5-1, 5-14 through 5-17, 5-19). The closest Model Rule analogues are Rule 1.7 (concurrent conflicts) and Rule 1.8(g) (aggregate settlements). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest)
- MR 1.8(g) (aggregate settlements)
- NY DR 5-105(A), (C); DR 5-106; EC 5-1, 5-14, 5-15, 5-16, 5-17, 5-19
Cases:
- Matter of Guardianship of Lauderdale, 15 Wash. App. 321, 549 P.2d 42 (1976): one lawyer may not represent minors with non-aligned settlement interests
Other opinions cited:
- Alabama Opinion 82-591 (1982): no single representation of all plaintiffs where assets are insufficient
- Colorado Opinion 58 (1981): multiple clients in water-rights litigation absent impairment
See also
- NY State Bar Op. 643: A conflicts panel for a legal services organization
- NY State Bar Op. 635: Suing a former firm for malpractice; conflict of interest
- NY State Bar Op. 655: Zoning board member representing a plaintiff suing the town
Source
- Landing page: https://nysba.org/opinion-639/