“Conflict of interest” is a term that is often used loosely (and incorrectly), but the failure of an attorney to recognize and properly deal with one can have serious consequences for both the attorney and the client. In personal injury cases, the most common conflict arises where both the driver and passenger of a vehicle are injured. Unless it is clear that the driver of the other vehicle is 100% at fault, such as a driver that rear-ends a stopped or slowing vehicle, the passenger has a claim against the drivers of both vehicles. For example, suppose you are the passenger in your friend’s vehicle when it is sideswiped while changing lanes. You have a claim against the driver whose vehicle struck yours and also a claim against your friend if there was something that he could have and should have been done to avoid the accident, such as swerving out of the way or hitting the brakes sooner than he did. In that scenario, it would be a conflict of interest for a single attorney to represent both you and your friend. In the absence of a conflict waiver, you and your friend may both consult with the same attorney initially and that attorney may assist in helping you get the case started, but when it becomes clear that your friend may be even 1% at fault, your attorney will explain that there is a conflict of interest and will recommend that you either (a) have another attorney from another firm take over your case or (b) sign a waiver acknowledging that you have a claim against your friend but you choose not to pursue it and seek recovery only against the driver of the vehicle that struck you and your friend.
Driver/Passenger Representation Conflict
NEW YORK’S HIGHEST COURT DEFINES THE BURDEN OF PROOF BETWEEN THE PARTIES REGARDING A LATE NOTICE OF CLAIM FILING (RESOLVING THE SPLIT OF AUTHORITY AMONG THE JUDICIAL DEPARTMENTS).November 3rd, 2017