Passenger and Driver Use Same Attorney?

November 24, 2013, by Michael A. DeMayo

At first glimpse I can assure you it does look suspicious.  Almost like two hands in the cookie jar, putting compensation concerns over responsibilities to a client.  Well, as attorneys, there are certain internal guidelines that if implemented and executed properly would eliminate the concerns that arise out of this potential conflict of interest. 

What do I mean by conflict of interest.  Absolutely.  In most situations, the passenger of a “not my fault” car accident will likely have a claim against the driver’s insurance company as well as the insurance company that caused the car wreck, assuming other criteria have meet met.  So, if an attorney represents the driver, the attorney’s responsibility and interests are to advocate vigorously for that client (i.e. the driver.)

However, let’s say the passenger has also decided to work with the same attorney or law firm to handle the passenger’s bodily injury claim.  The passenger has a claim against the driver’s insurance and the at-fault vehicle’s insurance company.  Herein lies, a potential conflict.  In other words, the same “advocate vigorously for my client” lingo applies to both the driver and the passenger because both are now clients of the same attorney.  Well, in order to advocate vigorously for the passenger, it requires filing claim against the driver’s insurance company.  Uh-oh.  Boom.  The driver, who is also my client—is the subject of a claim—that I—his attorney filed?  So, by its very nature advocating for one will breach that assurance to the other. 

Back to the “certain internal guidelines implemented and executed” paragraph a couple paragraphs up, these potential conflicts can be waived or addressed.  Typically, this comes down to negotiations on behalf of clients, the collection of medical records, and collection of any all statements to the insurance companies.  So, these internal checks are fairly straightforward when it comes to the logistics of it…Don’t let anyone see something that the firm has because of representation of Client Driver that may have a disparate impact on the quality of representation offered to Client Passenger. 

I’ve seen this go sour fast, particularly in smaller firms.  Inevitably the six people in the firm will come across information helpful to one and harmful to the other.  For this reason, it’s important to call a spade a spade.  Common sense first impressions let you know which type of firm you are working with and ultimately trust your gut.