May 15, 2002 Regular News Proposed opinion on representing multiple clients in an auto accident The Committee has recently received an inquiry from a Florida Bar member regarding whether an attorney need avoid representation due to a conflict when the attorney is asked to represent both passenger and driver in a suit for negligence/property damage against a third party driver in an auto accident. This is an issue that arises in personal injury cases in various fact situations, including the following: 1. The driver and passenger prospective clients are both injured and liability is clearly with the third party driver. There are no claims of comparative negligence or fault against the plaintiff driver. 2. The driver and passenger prospective clients are both injured and liability lies mostly with the third party driver. However, the third party’s insurance company is alleging comparative fault by the plaintiff driver. 3. Driver and passenger prospective clients are members of the same family and both are injured in an auto accident. While the plaintiff driver may have been partly at fault, the driver was uninsured and has no assets to satisfy an adverse judgment. 4. The driver and passenger prospective clients are both injured and evidence shows that the plaintiff driver was definitely at fault as well as the third party driver of the other vehicle.Regarding multiple representation of clients, Rule 4-1.7, Florida Rules of Professional Conduct, provides: (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.Rule 4-1.7(c), Florida Rules of Professional Conduct, continues: (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.Lawyers must address these issues with caution with concern for ethical conduct of the attorneys and opinions of Florida courts. The Florida Supreme Court has issued an opinion specifically dealing with ethical issues involved in representing both driver and passenger(s) in an auto accident. The Court held in The Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993), that one attorney could not simultaneously represent both driver and passenger in an auto accident where the passenger is pursuing a claim for negligence against the driver. Dual representation in these circumstances would violate Rule 4-1.7(a), supra. This decision echoes an earlier Florida Ethics Opinion 73-2, which reached the same conclusion. Similarly, the Court held in State Farm Mutual Ins. Co. v. K.A.W., 575 So.2d 630 (Fla.1991), that a law firm which had represented driver and passengers against third party insurers and tortfeasors could not later represent the passengers against the driver. The firm was disqualified due to the strenuous objection of the real party in interest, the insurer, even though the driver had a new attorney at the time he was sued and had consented to the passengers’ suit. Id. Such conflict issues may not be apparent at an initial consultation with prospective clients. Conflict issues may arise later or be resolved during discovery and litigation. Conflict issues that arise in personal injury auto accident cases can present various fact situations, including the following:Scenario 1 Where there are no actual or potential claims by passengers against the driver of the vehicle in which the passengers were injured, one attorney can ethically represent all parties as long as there is sufficient insurance coverage by the third party tortfeasor to cover the injuries of all injured plaintiffs. If there is not sufficient funding to cover the injuries of all the plaintiffs, one attorney may represent all the parties, with their knowing consent and waiver of conflict, only if all the plaintiffs are able to agree regarding the distribution of benefits/recovery among themselves. Rule 4-1.7(a)(1) and (2), Florida Rules of Professional Conduct. Individual representation of each of the plaintiffs is advisable to determine the apportionment of benefits obtained from the third party tortfeasor. If each plaintiff is advised independently, this assures that waivers of conflict are knowing and informed as required by Rule 4-1.7(a)(1) and (2). The parties may agree among themselves to submit to intra-familial arbitration with an independent arbitrator to determine the distribution of benefits on an equitable basis. Independent guardians appointed to represent injured minors can be useful in this regard. The lawyer representing all the claimants as plaintiffs cannot be involved in determining the distribution of the recovery among the various plaintiffs.Scenario 2 Where the third party tortfeasor is making a claim for contributory negligence against the driver of a vehicle in which passengers were injured, and this claim is based upon valid objective evidence, one attorney cannot represent both driver and passenger(s). Similarly, in a one car accident, where there is evidence of negligence by the driver, one attorney cannot represent both driver and passenger(s). A conflict exists under Rule 4-1.7(a) and (b), Florida Rules of Professional Conduct; Ethics Opinion 73-2; The Florida Bar v. Mastrilli, supra. As noted in the Comment to Rule 4-1.7, “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” In determining whether a conflict exists, the attorney should look at the situation as if he or she were representing the passenger(s) alone. If, in that situation, the attorney would sue the driver, then in most circumstances, the attorney cannot represent both driver and passenger(s). 1Scenario 3 The only exception to the conclusion in Scenario 2 would be when passenger and driver are members of the same family and the driver is uninsured or otherwise judgment proof. Comparative fault precepts may come into play. Fla. Stat. Sec. 768.81 (1999). Where a conflict of interest exists under Rule 4-1.7, lawyers must be very cautious in undertaking multiple representation. The Florida Bar v. Mastrilli, supra. The situation must be one in which an independent attorney would determine that it is not worthwhile or appropriate to sue the driver because there is no legal or economic basis for a claim under the circumstances. Comment to Rule 4-1.7. The same conclusion would be reached if the third party tortfeasor’s claim against the driver is bogus and without substantiation in fact. As set forth in Oregon Ethics Opinion 2000-158: There may be situations in which allegations of contributory negligence do not create an actual conflict. The passengers may disagree with the adverse driver’s factual contentions. If the driver and the passengers are closely related, the passengers may not wish to pursue intra-family claims. Assuming that these decisions not to pursue claims are made voluntarily and without influence arising from the lawyer’s obligations to the driver, there is no actual conflict between the clients. Again, knowing consents and waivers must be obtained from all parties in these circumstances. It may be the better practice for these consents to be obtained in writing and for the parties to be given the opportunity to consult with independent counsel before waiving an actual conflict.Scenario 4 Where the driver and passengers are all injured, but evidence shows that the plaintiff driver was comparatively negligent or at least a substantial question is raised as to the fault of the plaintiff driver under objectively valid evidence obtained, such that an independent attorney would advise the passenger to sue the driver, there exists a 4-1.7(a) conflict between the passengers and driver. Under these circumstances one attorney cannot represent both driver and passengers, even with the waiver of the clients involved. Rule 4-1.7(a) and Comment; Mastrilli, supra. ; Texas Ethics Opinion 500, Oregon Ethics Opinion 2000-158. The same result may obtain if the driver were a former client of the attorney representing the passengers in the accident. Rule 4-1.9(a) and (b), Florida Rules of Professional Conduct. If one attorney had begun to represent both driver and passengers, before determining that a non-waivable conflict existed, the attorney may be required to withdraw from representation of both driver and passengers because of the direct conflict between them. Rule 4-1.7(a); Rule 4-1.16(a) and (d), Florida Rules of Professional Conduct. Even if the attorney had only an initial consultation with both driver and passengers, representation may have begun under pertinent caselaw. In Florida, a prospective client’s subjective belief that his or her meeting with an attorney (in person or by telephone) was a meeting seeking and receiving legal advice, may create an attorney client relationship, if the client’s belief was reasonable. Dean v. Dean, 607 So.2d 494 (Fla. 4 th D CA 1992), review denied, 618 So.2d 208 (Fla.1993). The test is not whether a fee was paid or an engagement agreement signed, but whether the client reasonably believed that he or she was consulting an attorney seeking legal advice. Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996). In each of the factual situations set forth above, if the attorney determines that a conflict exists, the attorneys must follow Rule 4-1.16(a) and (d), Florida Rules of Professional Conduct, withdraw from the representation and protect the clients during the withdrawal process by providing them with copies of necessary documents and, if needed, obtaining extensions of time for them to find new counsel. Where an attorney withdraws from representing either driver, passenger, or both because of a conflict, the attorney cannot take a referral fee for referring the former client’s case to another lawyer. Florida Ethics Opinion 89-1. The conflict would prohibit the attorney’s acceptance of joint responsibility for the representation as required by Rule 4-1.5(f)(4)(D)(i) and (ii), Florida Rules of Professional Conduct, and Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1995). As shown in the varying fact situations set forth above, each case must be dealt with on its own facts, following the guidelines set forth in Rules 4-1.7 and 4-1.9, Florida Rules of Professional Conduct and the above cited decisions. 1 F lorida law allows suits by one spouse against the other spouse to the extent of insurance coverage. Ard v. Ard, 414 So. 2d 1066 (Fla. 1982). Official Notice: Proposed opinion on representing multiple clients in an auto accident The Professional Ethics Committee will consider adopting a proposed advisory opinion on the issue of representation of multiple clients in an auto accident case, based on an inquiry from a member of The Florida Bar, at a meeting to be held at 2:00 p.m. on June 21, 2002, at the Boca Raton Resort & Club in conjunction with The Florida Bar’s Annual Meeting. A draft proposed advisory opinion, drafted by a subcommittee of the Professional Ethics Committee, is reprinted below. The draft has not been reviewed or adopted by the full committee. Pursuant to Procedures 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the issue presented and on the draft proposed advisory opinion. Comments must contain the draft proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the draft is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication. DRAFT PROPOSED ADVISORY OPINION 02-XX
Batesville goes 2-2 on the day to capture third of nine teams at the Cougar Challenge, & place three on the all tourney Team.In the morning grouping, we were not sure what to expect. We were grouped with Daleville & Lighthouse Christian Academy, and always new we had to play error free ball to have a chance to play in the top pool at the regroup. The dogs didn’t disappoint, picking up 40 aces in two matches with only two errors. Kylie Laker severed for 15 aces, while Lily Abplanalp notched 11 of her own. We seemed to be on Cruise with only 23 errors in two matches. Macy Prickel and Hattie Westerfeld picked up 10 kills each across the two matches.In the regroup we were with the best of the day and it proved to be more challenging. We committed 23 errors in a close two set match to Homestead, and just couldn’t separate when we needed to get the point runs in our favor. They did a great job keying in on one of our six rotation players and really got under her skin. Against Greenfield the rhythm just never came back. They pressured us with serve and kept us outa system and our serve never got aggressive enough to put pressure on them.At the end of the day it wasn’t bad volleyball, and some of the girls gained the respect of the coaches by being voted to the GCC All Tourney team. (pictured in order from left to right) #5 Macy Prickel served for 2 aces on a error free 14 attempts. She was targeted 48 times in serve receive, and had 21 kills & 11 digs for the day. #7 Kylie Laker had 19 Aces on the day in 53 attempts serving, 6 kills, 48 assists and 15 digs. # 11 Jenna Ertel who is a second time award winner was error free serving 17 times, and had 25 digs on the day.Greenfield won their tourney followed by Homestead and Batesville.Bulldogs lost vs. Greenfield: 25-19, 25-17Bulldogs lost vs. Homestead: 25-20, 25-19Bulldogs won vs. Daleville: 25-23, 25-16Bulldogs won vs. LCA: 25-6, 25-3Batesville will welcome Franklin County to the dog pound this Tuesday for some EIAC volleyball!Courtesy of Bulldogs Coach Jody Thomas.
Syracuse (4-6, 2-4 Atlantic Coast) had its best offensive output in nearly two months on Saturday, but Wake Forest shredded the SU defense in a 64-43 Demon Deacons win in the Carrier Dome. For the first time in Dino Babers’ career as a head coach, his team entered the fourth quarter with a lead and lost. With two games left on the schedule, SU needs two wins to become bowl-eligible.Stock upRavian PiercePierce is the tight end SU and Babers have not had before. The junior college transfer has settled in as a solid third target alongside the receiving duo of seniors Steve Ishmael and Ervin Philips. Pierce adds a new wrinkle to the Orange offense that defense cannot take lightly. Pierce finished Saturday with four catches for 52 yards but two of those receptions were for touchdowns and a third went for a first down.When SU’s offense clicks as it did in the first half, Pierce’s value is much more apparent. Both of Pierce’s touchdown catches came from play-action. If SU can maintain a decent rushing attack — it ran for 178 yards against Wake Forest — Pierce will only have a better chance to exploit slower linebackers and safeties.Moe NealThe sophomore running back has been an interesting case all season. He is one of the team’s best big-play threats but has struggled to earn consistent touches. Part of the reason could be because of junior Dontae Strickland’s pass-blocking skills. Yet Neal has said he’s fine with being patient until he gets his chance. On Saturday, he finished with 12 carries to Strickland’s nine, the first time he surpassed Strickland in that regard this year.Neal rushed for 86 yards, averaging 7.2 yards per carry. Strickland added a touchdown and 59 yards of his own. With the status of SU’s best rushing threat, junior quarterback Eric Dungey, still unknown for next week, that kind of production from the running backs will be imperative to continue offensive success.AdvertisementThis is placeholder textSpecial TeamsBabers said last week that he needed sophomore receiver/return man Sean Riley to catch more punts. Riley caught two of Wake Forest’s four punts and didn’t allow SU to get pinned inside its own 20-yard line once. But his contribution was seen most on kickoffs, where he took five returns for a total of 121 yards, highlighted by a 38-yard return.SU’s special teams also came through with a massive play when redshirt junior defensive tackle Chris Slayton blocked a WFU extra-point attempt that would have tied the game. Instead, sophomore corner Scoop Bradshaw picked up the ball and returned it for two more SU points. The Orange didn’t score again.Stock downThe defenseSyracuse didn’t have its best player and offensive leader but still scored 43 points. That should always be enough to win at home, but it wasn’t because the SU defense had its worst showing since allowing 76 points to Pittsburgh in last season’s finale. Twenty-four of the 64 points SU surrendered came in the fourth quarter.Leading tackler Parris Bennett finished with only six total tackles. John Wolford, Wake Forest’s quarterback, amassed nearly 500 yards — 363 through the air and 136 more on the ground — and accounted for six touchdowns. Running back Matt Colburn II added two more scores and 237 yards. Much of WFU’s success running the ball came from SU’s failure to stop the run-pass option.Up next in a must-win game as Syracuse faces Louisville and one of the country’s most dynamic dual-threat quarterbacks, reigning Heisman Trophy-winner Lamar Jackson. A repeat defensive performance would almost certainly mean SU’s seniors will never play in a bowl game.Zack MahoneyThe fifth-year senior didn’t look like a backup quarterback during the first half, throwing for 297 yards and three touchdowns. The second half was different. Mahoney completed 11 passes after the game’s midway point and tossed two costly interceptions in the fourth quarter.On a crucial fourth down with six minutes left that was essentially a final chance for SU to climb back, SU pulled Mahoney, who had spiked his previous pass several yards short of his target. An ice-cold Rex Culpepper threw an incompletion and Wake Forest took over possession at SU’s 30-yard line.Mahoney re-entered the game on SU’s next drive but the brief benching said it all. He was not the quarterback he was in the first half and SU needed better. Mahoney could have to start again next week if Dungey is again unable to play.Devin C. ButlerPossibly the greatest flaw in SU’s offense is its depth after its top two wide receivers. Butler, a sophomore, is one of a few players who could remedy that problem. He got most of the snaps at the second outside receiver slot opposite Ishmael and finished Saturday with five catches for 49 yards. But he had two costly drops. Though it wasn’t the reason for the loss, SU will need Butler to step up in an amplified role if it wants to appear in a bowl game. Comments Published on November 12, 2017 at 5:55 pm Contact: [email protected] | @jtbloss Facebook Twitter Google+
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Philippine Army to acquire MANPADS, self-propelled howitzers Sports Related Videospowered by AdSparcRead Next Nadine Lustre’s phone stolen in Brazil After Horford sank two free throws, Tobias Harris missed a 3 and Embiid put it back in with only 2.4 seconds left. Butler couldn’t get a desperation 3 off in time before the buzzer sounded as the Sixers dropped their first game in three since acquiring Harris in a flurry of moves last week.“This is a new team,” Simmons said. “There are things we’re going to work on, things we need to get better at, but it’s a good test for us to see where we’re at with this new team. But I’m excited with everyone we have and to see how far we can go.”The Celtics answered the call in their first game since Marcus Morris questioned the team’s toughness after they surrendered leads of 28 points to the Clippers and 18 points to the Lakers on their home court.“Good teams have clunkers, but good teams respond to those with the right effort and approach,” Celtics coach Brad Stevens said.Both teams are tied for the fourth spot in the East with a 36-21 record.ADVERTISEMENT Boston Celtics’ Jayson Tatum goes up for a shot during the first half of an NBA basketball game against the Philadelphia 76ers, Tuesday, Feb. 12, 2019, in Philadelphia. (AP Photo/Matt Slocum)PHILADELPHIA — The Boston Celtics still own the Philadelphia 76ers no matter who is on the court.Gordon Hayward scored 26 points, including a go-ahead 3-pointer with 1:50 remaining, and Boston beat Philadelphia 112-109 on Tuesday night. Al Horford had 23 and Jayson Tatum scored 20 and grabbed 10 rebounds to help the Celtics continued their dominance over the Sixers.ADVERTISEMENT Ginebra beats Meralco again to capture PBA Governors’ Cup title Playing without All-Star point guard Kyrie Irving, who sprained his right knee Saturday night, the Celtics beat the Sixers for the third straight meeting this season after defeating them in five games in the Eastern Conference semifinals last season.“Against a very quality opponent was big, especially on the road without Kyrie, it was huge,” Hayward said.FEATURED STORIESSPORTSGolden State Warriors sign Lee to multiyear contract, bring back ChrissSPORTSCoronation night?SPORTSThirdy Ravena gets offers from Asia, Australian ball clubsJoel Embiid had 23 points and 14 rebounds and Jimmy Butler scored 22 for Philadelphia.Hayward’s 3 from the corner put Boston up 105-103 and Marcus Smart added a free throw. The Sixers had a chance to tie when Jimmy Butler went to the line for three free throws but he missed two. After a turnover, Embiid lost the ball with under a minute left. Smart then blew past Ben Simmons for a dunk to extend the lead to 108-104 with 24 seconds left. Butler made a driving layup and a free throw to cut it to 108-107. “We understood Philly’s been playing at a high level,” Horford said. “We had disappointing losses at home. I felt like our backs were against the wall, so we all needed to come out and set the tone and we did that.”After trailing for nearly the entire first half, the Sixers opened the third quarter on a 9-0 run to take a 55-52 lead. JJ Redick’s 3-pointer capped the run. Minutes later, Simmons thrilled the crowd by driving around Tatum and throwing down a thunderous right-handed jam. But Tatum answered at the opposite end with a spin move around Embiid and dunk over Simmons.NO TAMPERINGThe NBA said Los Angeles Lakers president Magic Johnson did not break any league tampering rules when he spoke about possibly working with Simmons in the offseason. The investigation was initiated after it was revealed Sunday that Simmons wanted to meet with Johnson to talk about the art of being an elite point guard. Johnson complimented Simmons publicly on Sunday. Sixers GM Elton Brand said Monday he already told Simmons he wouldn’t allow it.TIP-INSCeltics: Improved to 14-13 on the road. … Horford was 6 for 23 from beyond the arc over his last 10 games before making 3 of 5. … Morris had 17 points.76ers: Fell to 23-7 at home. … Embiid was 9 of 22, including 2 of 8 from 3-point range. … Harris was 0 for 6 beyond the arc.UP NEXTCeltics: Host the Detroit Pistons on Wednesday night.76ers: Visit the New York Knicks on Wednesday night. 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