Conflicts of Interest Among Drivers and Passengers

Conflicts often arise when there are several passengers in a car that is in a collision. Before accepting a case, an attorney must make certain that there is not a conflict or even the appearance of a conflict. The North Carolina State Bar and the South Carolina Bar have adopted the Model Rules of Professional Responsibility from the American Bar Association, and Rules 1.7 and 1.8 address conflicts of interest for attorneys. In sum, these rules prevent the representation of one client that is potentially adverse to another client, unless the lawyer reasonably believes that the lawyer will be able to effectively and diligently represent each client, and each client gives informed consent in writing. An attorney’s representation of two or more clients with adverse or conflicting interests constitutes such misconduct as to subject him/her to liability for malpractice unless the attorney has obtained the consent of the clients after full disclosure of all the facts concerning the dual representation.

There are several reoccurring conflicts in car accident cases involving a host driver and a guest passenger. First, a passenger might have a negligence claim against the driver. Sometimes it can be difficult to explain to a client that the same attorney cannot represent spouses or a mother and child riding together due to a potential conflict. Second, the damages of all the claimants might exceed the at-fault driver’s insurance policy limits. This lack of funds creates a situation where all of the claimants are fighting over limited funds.

There are potential benefits of multiple representations. For example, litigation costs can be divided between clients and not be duplicated by multiple attorneys.

Can an attorney represent the driver injured in an accident while at the same time representing a passenger in the driver’s car? The answer is “it depends”; sometimes it is yes, and sometimes it is no.

To represent both the driver and passenger, it would have to be clear to the attorney that the driver does not have the potential of a claim against the driver. The attorney would have to analyze the facts to determine if there is any possibility that the driver might have been the negligent party, or whether there could have been concurrent or contributory negligence.

It also has to be clear that there will not be a dispute between the driver and passenger over limited available funds. For example, four passengers in a car suffer serious injuries, and the available insurance coverage is $25,000/$50,000. If the gross value of the claims exceeds the funds available to compensate the injured parties, it would seem that each injured party should have a lawyer to represent his or her interest. If the injured parties are to receive a pro rata share of the available funds, the pro rata shares would seemingly have to be negotiated by the parties being represented by independent counsel.

Even if the attorney decides that there would be no conflict with a joint representation, it would be advisable to obtain a written waiver from both parties.