When a driver and a passenger are injured in a car accident in Orlando, or anywhere else in Florida, the question arises: May one lawyer or law firm represent both the injured passenger and the driver? As is all too often the answer in law, it depends on the situation and the facts of the case.
Regardless, when a driver and a passenger in the same vehicle are injured in a motor vehicle accident, there are potential issues that could arise and result in a conflict of interest. Although it may be tempting for the lawyers and/or the potential clients to keep the claim under the purview of one attorney or firm, serious ethical issues could arise that could potentially cause problems for everyone involved.
The key here is that you understand what you’re getting into, even if there’s only a small chance that you could be affected. The protocol of properly advising our clients and potential clients is less about the probability of a conflict arising and more about the possibility. In other words, our job as counselors is to know the rules and explain them so that our clients and potential clients can make the best decisions possible. So, grab a cup of coffee, and we’ll dig into the potential conflicts of interest that can arise when a passenger and driver are represented by the same lawyer or firm.
Situations to Consider When a Passenger and Driver are Injured in a Car Accident
When a driver and their passenger get hurt in a car crash, you might think it's always okay for the same lawyer to represent both of them in their injury claims. But that's not always true. Sometimes the driver and passenger have competing interests that would make it a conflict of interest for one lawyer to represent both of them.
Here are some common situations that can come up when both a driver and passenger are injured in a car accident in Florida. These examples show when it might be okay, and when it might not be okay, for the same lawyer to represent both the driver and passenger.
Hypothetical 1: The other driver is clearly at fault.
In this hypothetical, it's clear that the other driver is completely at fault. There are no claims that the driver who had the passenger is even partly to blame.
Here, the issue is insurance. If there is sufficient insurance to cover all the parties’ damages, a lawyer may ethically represent a passenger and driver. If there’s not enough insurance to cover everyone’s damages, one lawyer may represent an injured passenger and driver if the parties knowingly consent to such representation and waive any potential conflict of interest, and the parties are able to agree regarding how the limited insurance will be apportioned.
The first problem here is that liability is rarely cut and dry. The at fault driver’s insurance company will be searching for ways to pin liability on the driver of the car with the passenger(s). All it takes is some evidence that the driver was negligent, like a cell phone record showing a text, a witness statement, or black box data, and now there’s a potential conflict.
The other issue is damages. At what point have the clients reached full medical improvement, and do we really know at the outset of the case the extent of each client's damages? This is something to consider early on, and we must anticipate issues arising in the future.
Hypothetical 2: The other driver is mostly at fault.
In this situation, most of the fault lies with the other driver. However, the other driver's insurance company is trying to say that the driver with the passenger is partly to blame too.
Here, there’s a claim by the other driver that the driver of the vehicle with the passenger(s) was at least partially at fault, and that claim is based on some objective evidence. In other words, the potential claim against the driver of the vehicle with the passenger is not just a bogus or frivolous claim.
In this situation, a conflict likely exists. The question that we need to ask is this: If the attorney were representing only the passenger, would there be a viable claim against the driver? If so, it could be a conflict of interest for the attorney to represent the driver and the passenger.
Hypothetical 3: Family members, and driver doesn’t have insurance/assets.
The driver might be partly to blame, but the driver doesn't have insurance that covers the passenger. The driver also doesn't have money or property to pay for any judgment against them. In this situation, the lawyer may be able to represent the driver and passenger(s) if the lawyer determines that there would be no legal or economic basis for bringing a claim against the driver.
From an economic standpoint, if the driver has no insurance or assets to go after, the claim would not be economically viable. From a legal standpoint, if there’s no evidence whatsoever that the driver of the vehicle with the passenger was at fault, then the claim would not be legally viable.
Regardless, family members may decide that they don’t wish to pursue a claim against another family member. In these situations, the parties’ consents and waivers could provide for representation by one lawyer. But, the parties might wish to consult with independent counsel to be sure they’re not stepping into a situation where they’re hurting their own interests.
Hypothetical 4: Both drivers are at fault.
There's proof showing that both the driver with the passenger and the other driver share the fault for causing the accident. Alternatively, there at least some substantial question about whether the driver of the vehicle with passengers was at fault.
Here, there would likely be a conflict of interest, assuming that the lawyer, if representing only the passenger, would advise the passenger to bring a claim against the driver. Thus, even with consent of the parties, the attorney shouldn’t represent the driver and passengers.
Hypothetical 5: Both at fault and exclusions on the policy.
In this situation, everyone got injured in the wreck. The drier and passenger(s) are family members. The other driver is saying the driver shares some blame. The driver’s insurance policy won't cover family's injuries because of a "family exclusion" rule. The driver also doesn't have much money or assets of their own (judgment proof).
Here, an attorney may be able to represent the driver and passenger(s). Again, the prudent thing to do would be to obtain proper consent and conflict waivers in writing.
Florida Rules: Representing a Driver and Passenger in the Same Crash
The best place to start when analyzing these driver and passenger situations is the rules. Both the Florida Rules of Professional Conduct and comments and case law shed light on these situations where a lawyer might represent both an injured passenger and driver in the same collision.
Rule 4-1.7 of the Florida Rules of Professional Conduct
The Florida Rules of Professional Conduct have rules about when a lawyer can and can't represent multiple clients in the same case. Rule 4-1.7 provides, in relevant part:
(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and
(2) each client consents after consultation.
(b) Duty to Avoid Limitation on Independent Professional Judgment. A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Case Law and Other Sources of Guidance on the Issue
The Florida Rules of Professional Conduct and opinions from ethics boards and courts in Florida help guide lawyers on these types of issues where a conflict of interest might arise. The Florida Supreme Court has specifically addressed the ethics of a lawyer representing both a driver and passenger from the same car accident.
In a case called The Florida Bar v. Mastrilli, the Court said a lawyer cannot represent both the driver and passenger if the passenger is making a claim that the driver was negligent. Representing both people in that situation would violate Rule 4-1.7(a). An earlier ethics opinion, Florida Ethics Opinion 73-2, said essentially the same thing.
The problem here is that a passenger might not initially want to pursue a claim against the driver but may need to bring such a claim to cover medical expenses, depending on available insurance coverage and evidence regarding the driver’s behavior. Thus, what may start as only a potential conflict may become a full blown conflict later in the claim during an investigation. For example, if the driver was using a cell phone or speeding (even a few mph over), there may be comparative negligence, which could ultimately give rise to a viable claim by the passenger against the driver.
In another case, State Farm Mutual Ins. Co. v. K.A.W., the Court said that if a law firm represented the driver and passengers in claims against other people or insurance companies, that firm can't later represent the passengers in a claim against the driver. The firm wasn't allowed to do this, even though the driver had a different lawyer by then and was okay with the passengers' lawsuit. The insurance company objected to the firm representing the passengers against the driver, and the Court agreed with the insurance company.
The concerning part here is that these types of conflicts might not be clear when a lawyer first meets with potential clients. The conflicts might come up later or be figured out as the case moves forward. That’s why all parties involved must be fully informed regarding these issues so that everyone can make the best decision possible.
What if a Conflict Arises?
If a conflict exists after the lawyer has already begun representing the injured driver and passenger, the Rules say that the lawyer must abide by Rule 4-1.16 of the Florida Rules of Professional Conduct and withdraw completely from representation (of both parties). Rule 4-1.16(a)(1) provides that a lawyer, after beginning representation, must terminate representation where the representation “will result in violation of the Rules of Professional Conduct or law.”
In the situation we’ve been discussing, a lawyer representing an injured passenger and driver may be in violation of the Rules of Professional Conduct if a conflict of interest arises. In other words, if the lawyer’s representation of both clients affects the lawyer’s responsibility to represent the best interests of either client, the lawyer must withdraw from representing both clients.
