After settling the passengers' claims from a car crash, can one lawyer represent both the driver and the owner of that car in their own claims?

Plain-English summary

Opinion E-82-6 arose from a single car collision. The owner's (O's) car was driven by D, carrying D's wife and son as passengers; the car was uninsured. The lawyer had already represented the two passengers and settled their claims against the other car's insurer, and the passengers released both D and O. D then had personal-injury and medical-expense claims, and O had a property-damage claim. The committee was asked whether the lawyer could represent D, O, or both in pursuing those claims.

The committee concluded that a conflict of interest may arise if the lawyer represents both D and O, because D was driving O's car and O may have a cause of action against D for the damage to the car. It applied the former conflict rule, SCR 20.23(3)(b), under which a lawyer should never represent multiple litigation clients with differing interests and should resolve doubts against the propriety of the representation. As to representing D or O but not both, the committee saw no conflict, since the passengers' claims had already been settled, but cautioned that confidential communications received from the former clients (the passengers) may not be revealed without their consent and full disclosure (SCR 20.22(2)(a)). Its conclusion: the lawyer may not represent D and O together, but may represent either one alone subject to SCR 20.22(2).

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. Concurrent conflicts are now governed by SCR 20:1.7 / Model Rule 1.7, and duties to former clients by SCR 20:1.9 / Model Rule 1.9. 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 Treat this page as historical context, not current guidance.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: Could the lawyer represent both the driver and the car's owner?

A: No. The committee concluded the lawyer may not represent D and O together, because O may have a cause of action against D for the damage to O's car.

Q: Could the lawyer represent just one of them?

A: Yes. The committee found no conflict in representing either the driver or the owner alone, since the passengers' claims had already been settled.

Q: Did representing the passengers earlier create any limits?

A: Yes. The committee cautioned that confidential communications received from the former clients (the passengers) may not be revealed without their consent and after full disclosure.

Background and rules framework

The opinion applied the former Wisconsin Supreme Court Rules on exercising independent judgment and avoiding representation of multiple litigation clients with differing interests (SCR 20.23, 20.23(3)(b)) and on preserving former clients' confidences (SCR 20.22(2)(a)). The current counterparts are the concurrent-conflict rule (SCR 20:1.7 / Model Rule 1.7) and the former-client rule (SCR 20:1.9 / Model Rule 1.9).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.23, 20.23(3)(b) (independent judgment; multiple clients with differing interests) (former Code)
• Wis. SCR 20.22(2)(a) (confidences of former clients) (former Code)
• Model Rules 1.7, 1.9 (concurrent conflicts; duties to former clients)

See also

• WI Ethics Op. E-84-19: Representing an Insurer and Insured With a Punitive Damages Claim
• WI Ethics Op. E-85-3: Multiple Representation in Medical Malpractice Actions
• WI Ethics Op. E-83-9: Suing One Current Client on Behalf of Another

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-6.pdf