Supplemental Opinion 2005-5
(May 2005)

The inquirer has provided additional facts to the Committee subsequent to the issuance of the Committee's original opinion.  The inquirer advises that E terminated D's employment immediately following his return to E's facility on the day of the accident and that D, prior to the inquirer's original inquiry, acknowledged and did not object to the inquirer's suggestion that the driver's unanticipated statement would likely require disclosure in the course of discovery and at trial.  The inquirer further advises that his original inquiry to the Committee was the result of his concern that the forgoing may have presented a non-waivable conflict of interest notwithstanding the driver's oral consent and acknowledgment to/of disclosure and asks for Committee review of a draft conflict of interest waiver.

Pennsylvania Rule of Professional Conduct (the "Rules") 1.0(e) provides that, "'Informed consent' denotes the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct."

Comment [31] to Rule 1.7, referenced in the original opinion provides in part that, "-- the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit--"

The Committee points out that although the loss of the inquirer's job is no longer at issue, other possible detriments to the client may exist because of the disclosure.  These could, include, but certainly are not limited to, the court possibly disagreeing with the inquirer's position that the plaintiff's claims are time-barred as to D; significant issues regarding continued insurance coverage for D in the present litigation; or disadvantage to E's search for new employment.

Also, as set forth in Comment [33] to Rule 1.7, each client in the common representation has the right to the protection of Rule 1.9 concerning the obligations to a former client.  The inquirer has a duty, under Rule 1.9 (a), not to represent a client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of a former client unless the former client gives informed consent.  Therefore, it may be difficult for the inquirer to withdraw from one representation and continue one or more of the other representations. One such scenario could be if a dispute was to develop between E and D over whether D's personal errand actually took him out of the course and scope of his employment.

However, if the inquirer reasonably believes that he can obtain fully informed consent (as per Rule 1.0e), to a waiver from both D and E, and reasonably believes that he can continue to provide competent and diligent representation to each client, then he can do so.  As regards D, the Committee is of the opinion that there are many possible scenarios that must be fully explained to D before he can be deemed to have given informed consent (and the inquirer must be certain that the risks are explained so that driver can properly understand them).

The Committee cautions that if such fully informed consent to a waiver of the conflict from either D or E can not be obtained, then the inquirer must withdraw from the matter entirely, and advise the insurer that it must retain separate counsel to represent E and D.

As regards the waiver presented by the inquirer for review, it is clear that given the requirements of informed consent as outlined in this opinion that the waiver as drafted is inadequate.

 

 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.