Can one lawyer represent two people injured in the same accident when one of them may be partly at fault?

Plain-English summary

A lawyer wanted to represent both the driver and the passenger of a motorcycle, both injured in a collision with an automobile. The motorcycle driver was uninsured, there was an acknowledged probability that the driver bore some comparative negligence for the accident, and the driver was likely to be a party in litigation among the motorcycle driver, the auto driver, and the passenger. Settlement talks had failed and litigation appeared imminent. The driver and passenger were long-term domestic partners but were not married.

On the first question, the committee said that under RPC 1.7(a) and (b) a lawyer shall not represent a client if that representation will be directly adverse to, or materially limited by, the lawyer's responsibilities to another client. Here the interests of the driver and passenger may be directly adverse because of the probability of comparative-negligence allegations, so a conflict exists.

On the second question, the committee said a client can waive a conflict only after a determination, under the objective standard of a disinterested lawyer, that the lawyer's relationship with the other client will not be adversely affected. It concluded that no reasonable lawyer would conclude that the relationship with the other party would not be adversely affected, so the conflict is not waivable.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The 2006 revisions restructured RPC 1.7 (now stated as a concurrent-conflict rule with an informed-consent exception), though it kept its number. 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee resolved the joint-representation question in two steps. First, it found a conflict because the co-clients' interests could be directly adverse, given the driver's probable comparative negligence in litigation that would involve both of them. Second, it treated the conflict as non-waivable, applying the objective disinterested-lawyer standard and concluding that no reasonable lawyer could find the lawyer's relationship with the other client unaffected. The committee's conclusion was tied to these facts: two injured co-clients whose fault allocation was at issue against each other.

Common questions

Q: Is there a conflict in representing two people hurt in the same crash?

A: The committee said yes on these facts, because the motorcycle driver's probable comparative negligence made the driver's and passenger's interests directly adverse under RPC 1.7.

Q: Can the two clients consent to waive the conflict?

A: No. The committee said a conflict is waivable only if a disinterested lawyer could objectively conclude the relationship with the other client would not be adversely affected, and that no reasonable lawyer could so conclude here.

Q: What made this conflict directly adverse rather than just a potential one?

A: The committee pointed to the acknowledged probability of comparative-negligence allegations and imminent litigation among the driver, the passenger, and the auto driver, which placed the co-clients' interests against each other.

Background and rules framework

The opinion interprets RPC 1.7 (Model Rule 1.7, conflicts of interest with current clients). The committee applied the rule's two prongs, direct adversity and material limitation, to find a conflict, then applied the waiver standard it described as the objective view of a disinterested lawyer. The analysis turns on the likelihood that the two co-clients would be adverse to each other on fault, not on whether they currently agreed.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7(a), (b) (conflicts of interest; direct adversity, material limitation, and the waiver standard)

See also

• WSBA Ethics Op. 1028: Loss-of-Consortium Conflict
• ABA Formal Op. 08-450: Confidentiality, Multiple Clients
• WA Ethics Op. 2049: Suing a Former Insurer Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1294

Original opinion text

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

Advisory Opinion: 2047
Year Issued: 2003
RPC(s): RPC 1.7
Subject: Conflicts

The inquiring lawyer wishes to represent the driver and passenger of a motorcycle both of whom were injured in an automobile/motorcycle accident. The motorcycle driver is uninsured. There is an acknowledged probability that the motorcycle driver has some comparative negligence for the accident and is likely to be a party in litigation between the motorcycle driver, the auto driver and the passenger. Settlement discussions have failed and litigation now appears imminent. The motorcycle driver and the passenger are long term domestic partners but are not married.

The inquirer asks: 1. Is there a conflict of interest if the attorney represents both the motorcycle driver and the passenger? 2. If there is a conflict may the parties waive it?

In response to the first question, under RPC 1.7(a) and (b), a lawyer shall not represent a client if the representation of that client will be directly adverse to or will be materially limited by the lawyer’s responsibilities to another client. In this case, the interests of the motorcycle driver and passenger may be directly adverse because of the probability of comparative negligence allegations. Therefore, a conflict exists.

In response to the second question, in order for a client to waive a conflict there must first be a determination under the objective standard of a disinterested lawyer that the lawyer’s relationship with the other client will not be adversely affected. The committee believes that no reasonable lawyer would conclude that the lawyer’s relationship with the other party would not be adversely affected. Therefore, this conflict is not waiveable.