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“Injustice anywhere is a threat to justice everywhere.” - Martin Luther King, 1968

Ethical Implications of Cases Involving Motor Vehicle Accidents

By John Booth Farese

"a law firm may be vicariously liable for its attorney's conduct"

1) Hartford Accident & Indemnity Co. v. Foster, 528 So. 2d 255 (Miss. 1988), is probably one of the most important cases involving ethical considerations in representing clients involved in a motor vehicle accident. The plaintiff filed suit against Foster. Hartford Accident and Indemnity Company had the liability coverage for Foster. Prior to and during the trial the plaintiff made several settlement offers (all within the policy limits) to defense counsel. These offers were rejected. The jury returned a verdict well above the limits of liability. Subsequently, Foster filed suit against Hartford claiming bad faith refusal to settle the case within the policy limits. Foster's complaint also alleged breach of fiduciary duty.

The Supreme Court found that when offers to settle are made, the insurer has a fiduciary duty to look after the insured's interest and to make a knowledgeable, honest and intelligent evaluation of the claim. If this is not done, then the carrier is liable to the insured for all damages occasioned thereby. The Court further noted the problems that arise in the "insurance triangle" where the attorney is representing the insurance company who in turn represents the interests of the insured. The Court found that the insurance defense attorneys had a duty to notify the insured that he/she should consider employing his own counsel and to inform him/her of any settlement offers. Foster exemplifies the attorney/client relationship when an attorney represents both an insurance company and the insured in a motor vehicle accident. If the interests of both clients parallel one another, this is acceptable practice; however, duties and obligations may arise that require the attorney to advise the insured to seek other counsel.

2) Mississippi State Bar v. Blackmon, 600 So. 2d 166 (Miss. 1992). The initial litigation involved a motor vehicle accident. The Mississippi Supreme Court hear the matter because of allegations of attorney misconduct. The Court found that an attorney had a duty to properly investigate his client's address; and that it was a breach of duty to fail to follow suggested procedures for calculating attorney's fees. The Court specifically mentioned that consideration should be given to the amount of time and effort required in handling a case. As stated in Blackmon and Levi v. Mississippi State Bar, 436 So. 2d 781 (Miss. 1983), attorneys should not urge a client to make statements or do some act that will benefit the attorney or the attorneys associates more than the client. Several ethical issues are presented in these cases, another being that attorneys should be especially cautious when handling a minor's case.

3) The Mississippi Bar v. John Land, decided on December 21, 1994, Supreme Court No. 93-BA-00806 involved a Complaint against Attorney Land for failure to disclose material facts, making false statements and general misconduct. The Complaint Tribunal found no misconduct by Land, but the Supreme Court determined that Attorney Land had withheld information regarding the cause of his client's injury which the opposing counsel discovered through other means.

4) The Rules of Professional Conduct in Mississippi, 60 Miss. Law Journal 550 (1990) by Professor William Champion is a "must" for attorneys to read.

5) It should be noted that since a law firm may be vicariously liable for its attorney's conduct great care should be taken to avoid ethical traps. See Entente Mineral Co. v. Parker, 956 F. 2d 524 (5th Cir. 1992). Sections 79-12-17, 79-12-25 Mississippi Code of 1972, Annotated as amended.

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CHECK LIST OF SOME AREAS IN MOTOR VEHICLE ACCIDENTS OF CONCERN (ETHICAL/MALPRACTICE)

  • Are you representing two or more injured parties in the same accident?______
  • If so, is one of your clients a driver and one a passenger?________
  • Are you representing two persons (including but not limited to a husband and a wife) injured in an accident when one is a passenger and the other is the driver and where one of the possible defenses may be contributory negligence of the driver of the car in which your clients were traveling?_______
  • Are you attempting to represent two or more persons in the same accident and the total damages of the clients exceed the available insurance coverage?_________
  • Have you settled a minor's accident case and a guardianship is opened?________
  • Are you still considered the attorney of record for the guardianship after the case is settled?________
  • Do you have a written contract of employment that is clear and unambiguous?_______
  • Do you personally explain how the attorney's fee and expenses are calculated?________
  • Do you have a settlement sheet which clearly explains were every penny of the settlement goes?______
  • Do you settle cases on a structured payment basis?______
  • Do you have an independent economist or company compute the present cash value of settlements with structured payments?_______
  • Do you keep time and expense records on each motor vehicle accident case?________
  • Do you get specific authority from a client before you make an offer to settle?_________
  • Do you confirm the authority from your to settle for a specific amount in writing?________
  • Do you confirm all offers to settle to the client or insurance carrier and the insured in writing?_____
  • Do you send your client a copy of all discovery requests by the opposite party?________
  • Do you have your client read and approve all discovery responses before filing the same?________
  • Do you review all discovery responses with your client prior to the discovery deadline?________
  • Do you check the statements made by your client and all other relevant facts to prior his/her deposition by checking accident reports, witness statements, medical records, etc.?________
  • Do you always visit the scene of the accident prior to trying a case?_______
  • Do you, your staff or investigator talk to all known witnesses prior to a trial?________
  • Do you give your client your opinion, in writing, about problems with the case prior to trial?________

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