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Opinion date: Feb. 8, 2002

Issue presented:

May a lawyer represent co-defendants where a claim of liability is asserted against one of the defendants on a vicarious basis when the other defendant is simultaneously represented by separate counsel on a claim of intentional conduct involved in the same case?

Facts presented by Inquirer:

Plaintiff and defendant A are involved in a motor vehicle accident. Defendant A and the plaintiff got out of their cars and had an altercation. Plaintiff has filed a lawsuit against defendant A asserting negligent operation of the motor vehicle operated by defendant A but owned by defendant B (employer of defendant A) and also asserting intentional tort claims against defendant A relating to the post-accident altercation. Plaintiff has also named defendant B, the employer of defendant A, asserting vicarious liability for defendant A operation of the motor vehicle, but not asserting vicarious liability for the post-accident altercation.

The motor vehicle insurance carrier for defendant B will provide coverage for the operation of the motor vehicle for both defendants, but disclaims liability coverage for the post-accident altercation. Defendant A’s homeowners insurance is providing a lawyer to defend the intentional tort claims arising out of the post-accident altercation.

Advice given:

Rule 1.7 governs conflicts of interest generally and states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. Likewise, a conflict of interest exists if the lawyer's representation of a client will be materially limited by the lawyer's responsibility to another client or a third person, or by the lawyer's own interest unless the lawyer reasonably believes the representation will not be adversely affected, and the client consents after full disclosure and consultation.

Under the circumstances of this matter, the employer (defendant B) acknowledges that the employee (defendant A) was operating the motor vehicle within the scope and course of his employment. Of course, the employer (defendant B) would disclaim liability for the post-accident altercation, but liability is not being asserted against the employer for that conduct. Since the interests of the parties are aligned with respect to the liability of the employee and the employer for the operation of the motor vehicle, Rule 1.7 would not prohibit that joint representation by a single lawyer. Since the employee is separately represented for the claims for which the employer is not involved, it does not appear that a conflict is implicated. It would generally be a good idea, pursuant to Rule 1.7(b)(2) for the lawyer to advise both clients of the implications of the common representation and the advantages and risks involved. So long as the lawyer reasonably believes that the representation of both clients will not materially interfere with the lawyer’s independent professional judgment, no conflict exists.

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