Conflict of Interest: Representation of Plaintiff in Personal Injury Action Where Defendant is Plaintiff's Relative

122 N.J.L.J. 207
July 21, 1988
 

OPINION 615

Conflict of Interest: Representation
of Plaintiff in Personal Injury Action
Where Defendant is Plaintiff's Relative

These two inquiries received by the Committee within two weeks of each other relate to the same subject matter and shall be considered together.
The first set of facts presents Counsel representing Brother 1 (B-l) in a divorce action wherein he and his wife together own a house. Brother 2 (B-2) was injured on the premises. Both B-l, his wife, and B-2 will consent to Counsel's representation of B-2 in a suit against B-l, since there is a homeowner's policy of sufficient amount to cover any "projected" damages, and all parties agree that B-2 will never make claim against any asset other than insurance proceeds.
The second group of circumstances involves a lawyer who has represented, and presently does represent, a client whose mother-in-law was injured in a fall in his home. All parties will consent to representation of mother-in-law by the inquirer in a suit against husband (client) and wife. They all also agree that any recovery is to be limited to insurance proceeds.
Each of these cases presents a direct conflict as contemplated by RPC 1.7(a). Both inquirers, however, assert that their cases are excluded by reason of RPC 1.7(a)(1) and (2) because there will be knowledgeable consent after full disclosure and consultation.
Both overlook the fact that in each case there is a third party which has an interest - the insurer. While it may be argued that no conflict exists vis-a-vis the insurer, we believe that RPC 1.7(c)(2) must be considered. That Rule, in pertinent part, provides:
...(2) in certain cases or situations creating an appearance of impropriety..., multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that... representation poses substantial risk of disservice to... the public interest... .
 
It appears clear to us that an ordinary knowledgeable citizen (not necessarily the insurer in these cases) would frown on the intended representations proposed here. Not only would the public interest be disservice, the legal profession would be demeaned. The intended representations are prohibited.