Ethics Opinion 112

Ethics Opinion 112

9.18.1969

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #112 – 09/18/1969 (13-69)

Topic: Conflict of Interest
Digest: Representation of injured child in action against insured parents
Canons: Canon 6

QUESTION

A recent opinion of the New York Court of Appeals held that a child riding in an automobile driven by its parent can sue the parent for injuries resulting from an accident.  Prior to that decision it was common for lawyers in such cases to represent both the parent and the child in a suit against the owner and driver of the other vehicle involved in the accident.  A lawyer who has a number of such cases pending asks whether he may ethically continue to represent both parent and child ad if not whether he may represent one, and if so, which.

OPINION

In the opinion of this Committee, the change in the law effected by the Court of Appeals decision creates a clear conflict of interest between the parent and the child and it would be improper for one lawyer to represent both. When a lawyer is approached by a parent in such a case he should advise the parent at the outset of the conflict and let the parent decide which party the lawyer is to represent. The other party should then be represented by independent counsel.The situation is more difficult where the lawyer already represented both parties when the law was changed. In such a case the lawyer will have received information from the parent on behalf of both the parent and the child. If any of this information would give an advantage or disadvantage to one party over the other, there is no way in which the lawyer can resolve the conflict and he should withdraw from the case entirely. If he does not, he will be in the position of representing a litigant suing a former client on the basis of information he received from or on behalf of such client.On the other hand, where the information was received in the early stages of the attorney client relationship and is of a non-confidential nature which clearly gives rise to no advantage or disadvantage as between the parent and the child, the lawyer may continue in the case on the side selected by the parent.The question is similar to that raised in Opinion 74 of this Committee dated March 28, 1968 which held that an attorney who represented the parents in an automobile accident case could not, even with the parents’ consent, bring suit on behalf of the child against the parents and the manufacturer of an allegedly defective tire on the automobile.