Can a lawyer represent an employee's workers' compensation claim and also represent both the employee and the employer against the third party who caused the same accident?

Plain-English summary

Lawyer F regularly represented X. X and his employee Y were both injured in a collision between X's car and one driven by Z. X carried workmen's compensation insurance. X and Y both asked F to represent Y against the compensation carrier and to represent both X and Y in collecting damages from Z. F had fully disclosed the facts bearing on possible conflicting influences and interests. The question was whether F could properly take the representation.

The Committee said that, assuming F had fully disclosed all pertinent facts, such as his past relationship with X and any possible effect that a recovery by Y against the compensation carrier might have in increasing X's compensation-insurance premiums or assessments, it was not improper under Canon 6 for F to undertake the employment. The ruling was 9-0.

Currency note

This opinion was issued in 1961, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 both an injured employee and the employer against the driver who caused the accident?

A: Under this opinion, yes, provided full disclosure is made. The Committee said it was not improper under Canon 6 for the lawyer to represent the employee's comp claim and both the employee and employer against the third party.

Q: What had to be disclosed?

A: The Committee said the lawyer had to fully disclose all pertinent facts, including his past relationship with the employer and any possible effect a recovery against the compensation carrier might have in raising the employer's compensation-insurance premiums or assessments.

Background and rules framework

The opinion interprets former Texas Canon 6, on conflicting interests, as applied to representing multiple parties arising from a single accident, including an employer and employee and a workmen's compensation carrier. The modern analog is ABA Model Rule 1.7, on concurrent conflicts of interest and client consent after disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest; informed consent), as the modern analog
• Texas Canon 6 (former canon)

See also

• TX Ethics Op. 297: Talking Settlement to Adjusters
• TX Ethics Op. 299: Suing a Current Client
• TX Ethics Op. 259: Office-Sharing Lawyers' Imputed Conflict

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-244/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_244.pdf

Original opinion text

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

QUESTION PRESENTED

F regularly represents X. X and his employee Y were both injured in a car collision between a car driven by X and one driven by Z. X carries workmen's compensation insurance. X and Y both request that F represent Y against the compensation insurance carrier and that F also represent both X and Y in collecting their damages from Z. F has disclosed fully to X and Y the facts bearing upon possible conflicting influences and interests. Is it professionally proper for F to represent X and Y as requested?

18 Baylor L. Rev. 322 (1966)

CONFLICTS OF INTERESTS - EMPLOYMENT - REPRESENTATION OF EMPLOYEE AND EMPLOYER
It is not improper, provided full disclosure is made, for an attorney to represent the employee in his workmen's compensation claim and also to represent both employee and employer in a personal injury case against a third person arising out of the same mishap.

Canon 6.

Assuming that F has fully disclosed all pertinent facts (such as his past relationship with X and such as any possible effect that a recovery by Y against the compensation carrier may have of increasing the premiums or assessments payable by X for compensation insurance), it is not improper under Canon 6 for F to undertake the employment in question. (9-0.)

Tex. Comm. On Professional Ethics, Op. 244 (1961)