MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-42
Conflicts - Representation of Defendant in auto-tort case when client is Plaintiff in consolidated case
Dear
The Committee of Ethics of the Maryland state Bar Association has considered your inquiry dated April 25, 1990, and I have been designated to respond to you on behalf of the Committee.
Your letter poses the following facts:
You represent a defendant in an automobile tort action. Your representation is provided through the client's insurance company. The client also is involved as a plaintiff in an action arising out of the same automobile accident. He is represented by different counsel in the plaintiff's action. You wish to raise a defense which you believe to be the strongest for the client. However, counsel for the client in the plaintiff's action believes that particular defense will compromise his case and does not want you to use it. You ask what you should do if the client refuses to allow you to use the defense you think will be the strongest, particularly in view of the fact that you are representing him through the insurer which you also consider to be a "client."
Surprisingly, this issue has not been addressed previously by the Ethics Committee. However, the Comment to Rule 1.7 of the Maryland Rules of Professional Conduct makes it clear that a lawyer's loyalty must be to the client that he or she is representing in the case. The Comment, referring to Rule 1.8 (f), specifically states:
[W]hen an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure these special counsel's professional independence.
Rule 1.8 (f) of the Maryland Rules of Professional Conduct states in part:
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client consents;
(2) There is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; • • • •
Cases in other jurisdictions indicate that where a conflict arises between an insured and the insurer, the lawyer may not continue the dual representation. See Lieberman v. Employers Insurance, 171 N.J. Super. 39, 407 A.2d 1256 (1979), modified and remanded, 84 N.J. 325, 412 A.2d 417 (1980). However, Rule 1.7 (b) (2) allows the continued representation if the client consents after consultation, consultation being defined in Rule 1.7 (c) to include "explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved."
It is the Committee's opinion that if the client refuses to allow you to file the Motion, you should withdraw from representing him, unless he consents after consultation. The consultation necessarily would involve informing him that by not allowing you to raise a defense, he could risk a denial of coverage by the insurer.
We trust that this opinion adequately addresses your inquiry.
Very truly yours,
COMMITTEE ON ETHICS
Steven Rosen, Chairman
Hon. Maurice W. Baldwin, Jr.
Sharon Beth Benzil
Joseph E. Carey
Arthur C. Elgin, Jr.
Nathan Feinstein
Glenn D. Klakring
James Noel Schuth
Linda D. Schwartz
Robert E. Sharkey
Donald E. Sharpe
Myrna Siegel