Question: Lawyer currently represents a minor, via a next-of-friend, who was a passenger in an automobile accident. The minor was riding with a family member when the accident occurred. A semi-truck passed the center line and struck the family’s car. The driver was killed in the accident and the minor suffered serious injuries. Lawyer filed suit against the driver’s estate, the truck driver, and the trucking company. Lawyer dismissed the driver’s estate from the lawsuit after the driver’s liability insurance paid the policy limits to the minor. Is it a waivable conflict of interest if Lawyer intervenes on behalf of driver’s spouse asserting a wrongful death claim in the minor’s lawsuit against the truck driver and the trucking company? Lawyer expects opposing counsel to assert that the driver was partially at fault for the accident by exceeding the speed limit.

Answer: Rule 4 dash–1.7(a)(1) and (2) provide that a concurrent conflict exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to other clients. Rule 4 dash–1.7(b) allows representation of clients with concurrent conflicts if: (1) the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation; and (4) each client gives informed consent, confirmed in writing.

In most scenarios, Rule 4 dash–1.7(a)(1) and (2) prohibit joint representation of a driver and the driver’s passengers when a third-party tortfeasor brings a valid claim of fault against the driver. It is considered a nonconsentable conflict of interest. This is because the lawyer would not be able to provide competent representation to the passengers without asserting a claim against the driver thereby compromising the representation. The lawyer’s duty of loyalty to the driver. prevents the lawyer from making such claim. See Comment [15] to Rule 4 dash–1.7 and Informal Opinion 950246.

The fact-scenario presented here is different in that the passenger has settled and dismissed passenger’s claim against the driver, before the driver’s spouse sought the Lawyer’s representation. As a result, the spouse’s interest and the minor/passenger’s interests may now be materially aligned, i.e., both the spouse and minor will want to minimize the level of fault attributed to the driver. If the driver and the next-of-friend are willing to give informed consent, confirmed in writing, to the representation, the conflict could be waived. See Informal Opinions 940053 and 950246. However, if at any point the clients’ positions diverge in a nonconsentable, material way, Lawyer will have to withdraw from representing all parties. See Rule 4 dash–1.16, Comments [4] and [29] to Rule 4 dash–1.7, and Informal Opinion 2021 dash–04.

Request an Informal Opinion.

© Copyright 2026