By letter dated February 17, 1987, you presented to the Committee the following factual situation, which was considered by the Committee at its March 16, 1987 meeting: Your firm represents the plaintiffs in an automobile-related personal injury action. The plaintiffs are Father (F) and Son (S), who were seriously injured, and Wife (W), who was not in the car. W's claims are for loss of consortium (in F's action), and in her own right and as parent and natural guardian (in S's action), suing for S's lost earnings. The defendant is F's father, Grandfather (G). No complaint has yet been filed.
Since the accident and your firm's retention, W has left F and is bringing an action for divorce. Your firm is not involved in the divorce action. F was rendered incompetent by his injuries, and presently his mother, G's wife, is his personal guardian. You have inquired whether your firm has a conflict problem in light of the following questions:
1. Can your firm continue to represent W on her consortium claim in F's action?
2. Can your firm represent W for her claims in S's action?
The Committee has considered the impact of the Code of Professional Responsibility, and has determined to recommend that, so long as you are mindful of the following provisions of the Code, and their present and possible future impact upon your clients' respective interests, and you fully disclose these aspects to the clients and obtain their consent, your firm is not expressly precluded by the Code from representing all the plaintiffs in the action.
The two areas of concern of which the Committee recommends you keep keenly aware are Canon 4, dealing with confidential information of the client, and Canon 5, dealing with divided loyalties. Taking the latter first, Ethical Consideration 5-15 cautions that care must be taken when an attorney undertakes to represent multiple clients who may have, or may come to have, differing interests. Ethical Consideration 5-17 characterizes the representation of co-plaintiffs in a personal injury action as one of several typically recurring situations involving potentially differing interests.... In the situation you presented to the Committee there may be several potential problems to look out for, including, but not limited to, differences between clients as to the value of the case, whether F's incompetence will impact on a possible future custody fight over S, and, in light of the divorce action, F and W's desires as to how a lump sum settlement or award should be allocated for tax, estate or marital property purposes. Of course, the provisions of DR 5-105 should be kept in mind:
DR 5-105. REFUSING TO ACCEPT OR CONTINUE EMPLOYMENT IF THE INTERESTS OF ANOTHER CLIENT MAY IMPAIR THE INDEPENDENT PROFESSIONAL JUDGMENT OF THE LAWYER.
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, associate or any other lawyer affiliated with him or his firm may accept or continue such employment.
Thus, it is the Committee's recommendation that, while your firm is not precluded from representing W on the consortium claim, you should only undertake such representation after full disclosure to W and F's representatives of those competing interests that are likely to surface during the personal injury litigation, as well as those that may come up in the divorce action but are impacted upon by the conduct of the personal injury action.
The second area of concern is governed by Canon 4 of the Code of Professional Responsibility, and involves the sharing of information between the co-plaintiffs that might be considered individually privileged. DR 4-101 provides, in pertinent part:
DR 4-101. PRESERVATION OF CONFIDENCES AND SECRETS OF A CLIENT.
(A) Confidence refers to information protected by the attorney-client privilege under applicable law, and secret refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client, including his identity.
(2) Use a confidence or secret of his client to the disadvantage of the client.
It is foreseeable that certain information could come to light concerning one spouse that, while useful to the other spouse in the context of the divorce action, might not be discoverable in that action because of the operation of a privilege. However, there is usually no privilege protecting confidences from disclosure to a co-plaintiff represented by the same counsel. Therefore, substantive information which might be used by one spouse against the other in the divorce action, but which might otherwise be privileged, could be revealed at the expense, and to the disadvantage, of one of your clients. It is particularly important that the clients be made fully aware of this situation and the potential it presents for adverse impact on each of them. When considering obtaining waivers of the attorney-client privilege from W and F's representatives, it is important to consider whether F is likely to be permanently incompetent, if not, there may be an issue raised, upon his regaining legal competence, as to whether his guardian's waiver of the privilege could be binding as to information disclosed while he was incompetent, but used against him after he regained his competence.
These issues bear careful exploration and discussion with your clients. Should any further issues arise as a result of your disclosures to your clients, please contact the Committee again.