Can an Oregon lawyer claim the same items of damages in two separate lawsuits from two accidents when it is unclear which accident caused which injury?

Plain-English summary

A lawyer represents a client injured in two separate automobile accidents, and the lawyer's investigation cannot tell which accident caused which injuries. The opinion answers two questions: whether the lawyer may include the same items of damages in both complaints, and whether, if one case settles and the client recovers some of those items, the lawyer may still pursue the same items from the opponent in the other case.

On the first question the opinion concludes yes. Because it is not clear which defendant caused the damage, the opinion finds no reason the lawyer cannot seek the same items of damages from two different defendants at the outset.

On the second question the opinion concludes no, qualified. Once a particular item of damages has been paid by one defendant, the opinion states it would be improper to seek payment a second time where the recovery would clearly be duplicative, giving the example of seeking double payment of the same medical bill. The opinion adds that a lawyer is permitted to seek additional recovery if a nonfrivolous argument can be made that double recovery would not result, giving the example of separate loss-of-consortium recoveries where the second accident caused additional injuries.

In practice

The opinion holds that pleading the same damages against two defendants is permissible while causation is unresolved, but applies Oregon RPC 8.4(a)(3), 3.1, and 3.3(a) to bar collecting clearly duplicative recovery once an item has been paid. Per the opinion, the line turns on whether a nonfrivolous argument supports the position that the second recovery is not duplicative.

Common questions

Q: Can a lawyer claim the same damages in two complaints arising from two accidents?

A: Yes. The opinion concludes that where it is unclear which accident caused which injuries, the lawyer may seek the same items of damages from both defendants at the outset.

Q: After a client is paid for an item of damages in one case, can the lawyer collect the same item in the other case?

A: No, qualified. The opinion concludes it is improper to seek a clearly duplicative second payment (its example is the same medical bill), but the lawyer may pursue additional recovery if a nonfrivolous argument shows it would not be duplicative.

Q: Which rules govern this question?

A: The opinion applies Oregon RPC 8.4(a)(3) (dishonesty and misrepresentation), RPC 3.1 (basis in law and fact that is not frivolous), and RPC 3.3(a) (candor to the tribunal).

Background and rules framework

The opinion interprets Oregon RPC 8.4(a)(3), which makes it misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on fitness to practice, together with RPC 3.1 (no knowingly frivolous position) and RPC 3.3(a) (candor toward the tribunal). These track Model Rules 3.1, 3.3, and 8.4.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)
• Oregon RPC 3.1 / Model Rule 3.1 (meritorious claims and contentions)
• Oregon RPC 3.3(a) / Model Rule 3.3 (candor toward the tribunal)

Cases:

• In re Popick, 3 DB Rptr 21 (1989)
• In re Hawkins, 305 Or 319, 751 P2d 780 (1988)
• In re Eadie, 333 Or 42, 36 P3d 468 (2001)

See also

• OSB Ethics Op. 2005-21: Frivolous Litigation and Affirmative Defenses
• OSB Ethics Op. 2005-8: Lawyer as Witness

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-19.pdf