Can one lawyer represent both the host driver and the guest passenger in a car-accident personal injury claim?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-99-2 asked whether a lawyer could ethically represent both the host driver and the guest passenger in a vehicle personal-injury claim, and the committee's answer was "it depends." The opinion updated and withdrew E-75-2 (1975), which had relied on the older Code of Professional Responsibility and barred joint representation wherever there was "any possibility of liability" on the host driver. Applying the then-current conflicts rule, SCR 20:1.7, the committee set out a fact-specific framework.
A lawyer could not represent both where the lawyer would make a claim against the host (or, under Wisconsin's direct-action statute, exclusively against the host's liability insurer), because advocating the host's fault would benefit the guest while directly harming the host. Likewise, if a reasonable lawyer concluded that the guest could be made whole only by a legitimate claim against the host, the representation of the guest would necessarily be materially limited by the duty not to claim against the other client, so joint representation was barred. The committee cautioned that, when both prospective clients first appeared, only one should be interviewed initially, because interviewing both together could lead to complete disqualification and triggered confidentiality duties under SCR 20:1.6 even before a representation began.
Where a reasonable lawyer concluded the guest would likely be made whole without any claim against the host, the lawyer could represent both in claims against other parties, but only after a reasoned analysis and the mutual written consent of both clients after full consultation. The committee listed numerous factors for that analysis (evidence of the host's fault, joint-and-several liability, adequacy of the opposing driver's insurance, competition for a limited insurance fund, discrepancies in testimony, and others) and stressed that a guest's insistence on not suing the host did not relieve the lawyer of performing the analysis. The committee declined to provide a standard waiver form, favoring a comprehensive disclosure letter discussed individually with each client, and noted that if a disqualifying conflict later emerged the lawyer had to withdraw, with SCR 20:1.9 governing any continued representation.
Currency note
This opinion was issued in 1999, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). Subsequent rule amendments or later opinions may have changed the analysis, and the opinion quotes the pre-2007 text of SCR 20:1.7. 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: Was joint representation of host and guest always prohibited?
A: No. The committee concluded that joint representation was not per se prohibited and withdrew the older E-75-2, replacing its near-categorical bar with a fact-specific analysis under SCR 20:1.7.
Q: When could the lawyer not represent both?
A: When the guest had a legitimate claim against the host. The committee concluded that a lawyer could not represent both if it would make a claim against the host or the host's insurer, or if the guest could be made whole only through such a claim.
Q: What was required when joint representation was allowed?
A: A reasoned analysis and mutual written consent. The committee concluded that, where the guest could be made whole without a claim against the host, the lawyer could proceed only after analyzing the listed factors and obtaining both clients' written consent after full consultation.
Q: Did the lawyer have to do the analysis even if the guest refused to sue the host?
A: Yes. The committee concluded that a guest's instruction not to claim against the host did not excuse the lawyer from determining whether the representation would be adversely affected or materially limited; if it would, independent counsel should advise the guest.
Background and rules framework
The opinion interpreted SCR 20:1.7 / Model Rule 1.7 (conflicts of interest), as it stood before the 2007 revisions, together with SCR 20:1.2(a) / Model Rule 1.2 (a client's authority over the objectives of representation), SCR 20:1.6 / Model Rule 1.6 (confidentiality, including duties to prospective clients), and SCR 20:1.9 / Model Rule 1.9 (duties after withdrawal). It applied the Wisconsin direct-action statute and the joint-and-several-liability rule (Wis. Stat. 895.045(1)) to the conflicts analysis.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.7(a), (b) / Model Rule 1.7 (conflicts of interest)
- Wis. SCR 20:1.2(a) / Model Rule 1.2 (objectives of representation)
- Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
- Wis. SCR 20:1.9 / Model Rule 1.9 (duties after withdrawal)
Statutes:
- Wis. Stat. 895.045(1) (joint and several liability)
Other opinions cited:
- ABA Informal Op. 723 (1964)
- Wisconsin Ethics Op. E-75-2 (1975) (withdrawn by this opinion)
See also
- DC Ethics Op. 243: Joint Representation in Divorce Cases
- DC Ethics Op. 248: Multiple Plaintiffs Claiming Employment Discrimination
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-99-2.pdf
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