I represent a passenger pursuing an underinsured-motorist claim against another driver's insurer. That same driver now wants me to represent him in an unrelated slip-and-fall case. Is that a conflict of interest?

Plain-English summary

The inquiring attorney represented a passenger injured when Vehicle 1 was rear-ended by Vehicle 2. The passenger settled her claim against Vehicle 2's owner for the policy limits, with both her own insurer and Vehicle 1's owner/driver's insurer approving the settlement, and was now pursuing underinsured-motorist claims under her own policy and under Vehicle 1's owner/driver's policy. Vehicle 1's owner/driver, represented by other counsel on his own claim against Vehicle 2's owner (which he settled for less than the available policy limits, without pursuing his own uninsured-motorist coverage), then consulted the inquiring attorney about representation in an unrelated slip-and-fall case.

The panel concluded the attorney's representation of the passenger in her underinsured claim against Vehicle 1's owner/driver's insurer does not conflict under Rule 1.7 with representing the owner/driver in the slip-and-fall matter. Applying Rule 1.7, the panel reasoned that a conflict would exist only if the interests of the current client (the passenger) were adverse to those of the prospective client (the owner/driver). The panel identified the passenger's underinsured claim as a contract claim against the owner/driver's insurance company, citing Pickering v. American Employers Insurance Co., 282 A.2d 584, 588 (R.I. 1971), meaning the adverse party is the insurer, not the owner/driver himself. The panel also found no other adversity between the two: the owner/driver had settled his own claim for less than the policy limits and was not seeking to recover under his own uninsured-motorist coverage.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, representing a client in an underinsured-motorist claim against another driver's insurer does not, by itself, create a Rule 1.7 conflict with representing that same driver in an unrelated matter, because the underinsured claim is a contract action against the insurance company rather than against the driver personally, so long as the facts do not otherwise show adversity between the two prospective clients.

Common questions

Q: If I represent someone in a claim against another driver's insurance company, is that driver automatically an adverse party?

A: No, according to this opinion; the panel treated the underinsured-motorist claim as a contract claim against the insurer, not the driver, citing Pickering v. American Employers Insurance Co.

Q: Can I represent both the passenger and the driver from the same accident in separate, unrelated matters?

A: On these facts, yes, according to the panel, because the panel found no adversity between the passenger's underinsured claim against the insurer and the driver's unrelated slip-and-fall case.

Q: What Rule 1.7 factors did the panel look at to confirm there was no conflict?

A: The panel looked at whether the interests of the current client were directly adverse to the prospective client's, identified the correct adverse party in the underinsured claim as the insurer, and confirmed the driver was not separately pursuing coverage that would put him at odds with the passenger.

Background and rules framework

The opinion applies Rule 1.7 (Conflict of Interest: General Rule), quoted in full, covering both direct adversity between current clients under subsection (a) and material-limitation conflicts under subsection (b). The panel's analysis turns on identifying the true adverse party in an underinsured-motorist claim, relying on Pickering v. American Employers Insurance Co., 282 A.2d 584 (R.I. 1971), for the proposition that such a claim is a contract action against the insurer.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (Conflict of Interest: General Rule) / RI Rule 1.7

Cases:

• Pickering v. American Employers Insurance Co., 282 A.2d 584, 588 (R.I. 1971), underinsured-motorist claim as a contract action against the insurer

See also

• Alabama State Bar Op. 1996-03: Law Firm May Represent Multiple Plaintiffs Against Same Defendant If Different Plaintiffs' Interests Are Not Adverse to or Compete With One Another
• RI EAP Op. 2005-10: Sale of Corporate Assets to a New Owner Creates No Rule 1.9 Conflict Absent Adverse Interests to the Former Client
• RI EAP Op. 2007-08: Representing a Terminated Agency Hearing Officer and Concurrently a Licensee Before the Same Agency Is Not a Rule 1.7 Conflict Absent Adversity

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202006-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

Rhode Island Supreme Court
Ethics Advisory Panel
Opinion No. 2006 -01 Request No. 910
Issued May 11, 2006

Facts

The inquiring attorney represents an individual who was a passenger in a vehicle (Vehicle 1) that was rear-ended by another vehicle (Vehicle 2). The passenger has made a claim for personal injuries against the owner of Vehicle 2. The passenger has not pursued a claim against the owner/driver of Vehicle 1. The owner/driver of Vehicle 1, who also suffered injuries, is represented by other counsel.

The passenger's case against the owner of Vehicle 2 was settled for the policy limits. The passenger's own insurer and the insurer for the owner/driver of Vehicle 1 each approved the settlement. The passenger is now pursuing underinsured claims under her own policy and under the policy of Vehicle 1's owner/driver.

Recently, the owner/driver of Vehicle 1 consulted with the inquiring attorney seeking representation in a slip and fall case. The inquiring attorney states that the driver/owner of Vehicle 1 settled his/her claim against the driver/owner of Vehicle 2 for less than the available policy limits, and is not seeking to recover under the uninsured- motorist provisions of his/her own insurance policy.

Issue Presented

The inquiring attorney asks whether he/she would have a conflict of interest in representing the owner/driver of Vehicle 1 in the slip and fall matter if he/she currently represents the passenger in a claim against the underinsured portion of Vehicle 1's owner/driver's insurance policy.

Opinion

The inquiring attorney's representation of the passenger in an underinsured claim against the insurer of Vehicle 1's owner/driver does not present a conflict of interest under Rule 1.7 to his/her representation of the driver/owner in a slip and fall case.

Reasoning

Conflicts of interest relating to current clients are governed by Rule 1.7 of the Rules of Professional Conduct. Rule 1.7 states:
Final 2006-01
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Rule 1.7. Conflict of Interest: General Rule. -

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

The inquiring attorney would have a conflict of interest if the interests of his current client, the passenger, are adverse to those of the potential client. The passenger's underinsured claim is a contract claim against the insurer of Vehicle 1's owner/driver's policy. See Pickering v. American Employers Insur. Co., 282 A.2d 584, 588 (R.I. 1971). Thus, the adverse party in that claim is the owner/driver's insurance company, and not the owner/driver.

Other facts satisfy the Panel that the interests of the passenger and the driver/owner of Vehicle 1 are not otherwise adverse. The driver/owner settled his/her claim against the at-fault party for less than available policy limits, and is therefore not seeking to recover under his/her uninsured-motorist coverage.

On the basis of the facts as presented, the Panel concludes that the inquiring attorney's representation of the passenger in an underinsured claim against Vehicle 1's owner/driver's insurer does not present a conflict of interest under Rule 1.7 to his/her representation of the driver/owner in a slip and fall case.

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