Can I represent my personal injury client's medical insurer on its subrogation claim at the same time I'm representing the client on the underlying injury claim?

Plain-English summary

An attorney asked the panel (Request #18) whether it was permissible under the Code of Professional Responsibility to represent a client's medical insurance carrier in its subrogation claim while also representing the client himself in his direct claim for personal injuries. This is a separate inquiry from, but presents the same fact pattern and holding as, Opinion 88-10 (Request #13).

The panel explained that under DR 5-105(A), representing both the medical insurance carrier's subrogation interest and the client constitutes a violation of the Code unless the situation falls within the exception in DR 5-105(C), which permits a lawyer to represent multiple clients if it is obvious he can adequately represent the interest of each, and if each client consents to the representation after full disclosure of the possible effect of the dual representation on the lawyer's independent professional judgment on behalf of each. The panel took the position that the dual representation is permissible under the Code if both the medical insurance carrier and the individual client agree to it before the attorney's agreement with the medical insurance carrier is executed.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Disciplinary Rules then in effect. 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 Treat this page as historical context, not current guidance.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 I take on my client's medical insurer as a client for its subrogation claim while representing my client's personal injury claim?

A: Yes, according to this opinion, if both the insurer and the client consent to the dual representation, with full disclosure of the possible effect on the lawyer's independent judgment, before the attorney's agreement with the insurer is signed.

Q: Does it matter when the consent happens relative to signing up with the insurance carrier?

A: Yes. The opinion conditions its approval on both the carrier and the client agreeing to the dual representation prior to execution of the attorney's agreement with the medical insurance carrier.

Background and rules framework

The opinion applies DR 5-105(A) and DR 5-105(C) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island. DR 5-105(A) generally bars representing differing interests; DR 5-105(C) creates an exception allowing multiple representation where the lawyer can adequately represent each interest and each client consents after full disclosure.

Citations and references

Rules of Professional Conduct:

• RI DR 5-105(A) (bar on representing differing interests)
• RI DR 5-105(C) (exception permitting multiple representation with adequate representation of each interest and informed consent)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-10: Representing Both an Injured Client and the Client's Medical Insurer on Its Subrogation Claim

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%2088-11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Request #18

An attorney seeks Panel advice as to whether it is permissible under the Code of Professional Responsibility to represent a client's medical insurance carrier in its subrogation claim in addition to representing the client himself in his direct claim for personal injuries.

Under Disciplinary Rule 5-105(A) the attorney's representation of the medical insurance carrier in its subrogation rights as well as the client constitutes a violation of the Code of Professional Responsibility unless the situation falls within the exception set forth in DR 5-105(C). This disciplinary rule reads, in pertinent part:

In situations covered by DR 5-105(A) ... a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

The Panel takes the position that if both the medical insurance carrier and the individual client agree to such dual representation prior to execution of the attorney's agreement with the medical insurance carrier then the dual representation is permissible under the Code of Professional Responsibility.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.