CI-866

February 10, 1983

SYLLABUS

The obligation of the lawyer runs to the insured party rather than the insurer when the lawyer has appeared for and represents the insured in pending litigation, notwithstanding that the insurer is paying for the representation. If the interest of the insurer and insured are in conflict, the lawyer must advocate and represent the interest of the insured.

References: MCPR Canon 7, DR 5-105; CI-309.

TEXT

After an airplane accident the estates of passengers and pilots brought a negligence action; there was a cross-claim against the family member who was the pilot. The pilot's insurer retained counsel to defend the pilot's estate on the cross-claim. The suits by the passengers' estates were dismissed and the dismissal appealed. The lawyer believes, if the appeal is successful the insurer will be exposed to greater liability.

The lawyer asks whether to accept the instructions of the plaintiffs to not oppose their attempts to overturn the dismissal, or to minimize the exposure of the plaintiffs or the insurer to liability.

It is unclear in the letter whether the firm views itself as representing the insurer, the estates of the father and mother (pilots), or both. Representation of an insurer and the insured is recognized in ABA Model Code of Professional Responsibility EC 5-17 as involving potentially differing or conflicting interests. It has consistently been the opinion of this committee that the obligation of the lawyer runs to the insured. Support for such opinion is evidenced by the appearance and supposed representation of the estates of the father and mother in pending litigation. The rationale is the insured has paid premiums and is entitled to a lawyer under the insurance contract. The insurer therefore, is not the client. Consistent with this, view the insured would and should maintain complete control over the course of the litigation.

In situations in which the interests of insurer and insured are not adverse, dual representation could, of course, be appropriate. But, MCPR DR 5-105 prohibits continuing employment for multiple clients if either may be adversely affected upon the exercise by the lawyer of independent professional judgment.

Once a lawyer is determined to be the advocate for the insured, Canon 7 sets forth the lawyer's course of action. The lawyer must obey the instructions of the client subject to the limitations set forth in Canon 7. CI-309 states:

"The right to make decisions which affect the merits of a cause or may substantially affect the rights of a client rests solely with a client, unless the client is mentally or physically disabled so as to be incapable from making a considered judgment, it is unethical for a lawyer to make such decisions."

It is therefore the lawyer's duty to advise the clients (the estates of the mother and father) as to the alternatives and the lawyer's opinion of the best course of action, but then to accept and advocate the decision of the clients. If the lawyer is unable to do so, the lawyer should withdraw as counsel.