NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion # 161 - 10/09/1970
Topic: Conflict of Interest, Confidences of Client
Digest: Representation of passengers in action against friend,
insured driver, improper after lawyer interviewed and acted in behalf of
Code: DR 4-101 (B) and (C); DR 5-105 (A) and (B); EC 4-5 and 6;
EC 5-14 and 15
Canons 4, 5 and 9
An attorney was requested by several persons to represent them in
their claim for personal injuries sustained while passengers in an
automobile driven by a good friend of theirs. The automobile had skidded
from a highway and struck another automobile which was parked on a mall
about five feet from the shoulder of the highway, killing the owner of
the parked vehicle. At the scene of the accident the driver was served
with a summons by a State Troops for driving with a defective tire.
Although desirous of making their claim against the driver, the
passengers asked the attorney to do whatever was possible to defend the
interests of the driver with whom they are very friendly and they
assured the attorney that they would not under any circumstances seek a
recovery in excess of the insurance policy limits, which were
The attorney interviewed the driver and in her behalf obtained an
adjournment of the heading upon the traffic summons. In his opinion, he
received no confidential information in the interview.
The driver and the passengers have been apprised of the foregoing
facts and consent to the attorney representing the passengers in their
claim for personal injuries. The driver’s insurance company has
been informed of such possible retainer, and that this inquiry is being
made. To date, the insurance company has neither consented nor objected
to such representation.
The attorney inquires whether or not he may represent the passengers
in an action against the driver: (1) in the circumstances stated, or (2)
assuming the driver, who is charged with negligence, obtains other
counsel at this stage.
Having interviewed the driver and undertaken to represent her in
connection with the summons served upon her for driving with a defective
tire, the attorney may not thereafter represent a party in an action
against her arising from the same accident.
DR 4-101 (B) provides that:
"Except as permitted by DR 4-101 (C), a lawyer shall not
(1) Reveal a confidence or secret of his client
(2) Use a confidence or secret of his client to the disadvantage of
(3) Use a confidence or secret of his client for the advantage of
himself or of a third person, unless the client consents after full
disclosure." DR 4-101 (C) provides in part that: "A lawyer may
(1) Confidences or secrets with the consent of the client or clients
affected, but only after a full disclosure to them."
EC 4-5 provides in part that:
"A lawyer should not use information acquired in the course of the
representation of a client to the disadvantage of the client and a
lawyer should not use, except with the consent of his client after full
disclosure, such information for his own purposes."
While the attorney may be of the opinion that he was not the
recipient of confidential information, others may reasonably conclude
that an attorney who interviewed his client in connection with an
automobile accident necessarily received information which may fairly be
regarded as confidential and the use of which may be to the disadvantage
of the client As stated in Canon 9, "A lawyer should avoid even the
appearance of professional impropriety." The fact that the driver is
insured is irrelevant; the interests of the parties are nevertheless
adverse. N.Y. State 74 (1968), N.Y. City 223 (1932) and 711 (1947).
The result is the same notwithstanding that new counsel is retained
by the driver.
EC 4-6 provides in part as follows:
"The obligation of a lawyer to preserve the confidences and secrets
of his client continues after the termination of his employment"
As this committee is of the opinion that it would be improper for the
inquiring attorney to represent the passengers even if the driver were
represented by new counsel, a fortiori, he could not represent the
passengers while still acting as attorney for the driver in a matter
involving the same accident DR 5-105 (A) and (B); EC 5-14 and 15.