Advisory Opinion:
2047
Year Issued:
2003
RPC(s):
RPC 1.7
Subject:
Conflicts
The inquiring lawyer wishes to represent the driver and passenger of a motorcycle both of whom were injured in an automobile/motorcycle accident. The motorcycle driver is uninsured. There is an acknowledged probability that the motorcycle driver has some comparative negligence for the accident and is likely to be a party in litigation between the motorcycle driver, the auto driver and the passenger. Settlement discussions have failed and litigation now appears imminent. The motorcycle driver and the passenger are long term domestic partners but are not married.
The inquirer asks:
1. Is there a conflict of interest if the attorney represents both the motorcycle driver and the passenger?
2. If there is a conflict may the parties waive it?
In response to the first question, under RPC 1.7(a) and (b), a lawyer shall not represent a client if the representation of that client will be directly adverse to or will be materially limited by the lawyer’s responsibilities to another client. In this case, the interests of the motorcycle driver and passenger may be directly adverse because of the probability of comparative negligence allegations. Therefore, a conflict exists.
In response to the second question, in order for a client to waive a conflict there must first be a determination under the objective standard of a disinterested lawyer that the lawyer’s relationship with the other client will not be adversely affected. The committee believes that no reasonable lawyer would conclude that the lawyer’s relationship with the other party would not be adversely affected. Therefore, this conflict is not waiveable.
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