United States: Ethics And Liability Considerations In Products Liability Representations

Products liability cases tend to be different from other civil cases in terms of the high level of scientific and technical expertise frequently required to be understood and packaged by the attorney, then communicated succinctly to the trier of fact. The applicable legal standards may seem easy by comparison. Products liability cases also tend to be different from other civil cases in terms of the ethical issues that frequently confront plaintiffs’ counsel, particularly those related to representation of multiple plaintiffs.

This article discusses certain ethical considerations related to statutes of limitations, solicitation and advertising, multiple representation where recoverable assets are limited and expert witnesses. It concludes with a brief review of selected legal malpractice cases arising from products liability representations.

1. Statute Of Limitations

Several common statute of limitations problems challenge the products liability plaintiffs’ lawyer. One is determining the applicable statute of limitations. Another is determining when a cause of action accrued under a statute of limitations, implicating issues of constructive notice and discovery. Sometimes the plaintiff’s lawyer must make this determination quickly, lest the statute of limitations slip away with the file on the lawyer’s desk.¹

There is no cure in sight for this source of anxiety and potential liability. Fortunately, the ethical rules appear to be more lenient. ABA Formal Ethics Opinion 94-387 (September 26, 1994) states that, in jurisdictions like Colorado where statute of limitations is an affirmative defense (see C.R.Civ.P. 8(c)), a lawyer who files an action knowing that it is time-barred does not violate the ethical rule against presenting frivolous claims or defenses, here Colo. R.P.C. 3.1. A strong dissenting opinion criticizes the ABA opinion as countenancing sharp practice, and there is no Colorado case or ethics opinion on the subject. Nonetheless, the majority opinion is comforting and, ultimately, correct, reasoning that "the whole point of the adversarial system is that parties are entitled to harvest whatever windfalls they can from the miscues or odd judgments of their opponent."²

A related problem is when a lawyer must decide whether to file an action in time to meet the limitations deadline but without time to adequately research the factual and legal basis of the action. The lawyer is caught between the rock of missing the limitations deadline, exposure to malpractice liability and an unethical lack of diligence under Colo. R.P.C. 1.3; and the hard place of filing an action potentially lacking merit and exposure to C.R.Civ.P. 11, C.R.S. § 13-17-101, et seq. and Colo. R.P.C. 3.1. With the recent addition to C.R.Civ.P. 11 requiring "ghostwriting" lawyers to identify themselves on a pro se party’s pleading, drafting a complaint for the client’s signature in these circumstances no longer avoids the Rule 11 problem.³

On balance, the dire consequences of waiting too long militate in favor of meeting the limitations deadline and completing the investigation promptly afterwards. There is nothing unethical about withholding service of process for this purpose, provided the lawyer (a) makes "reasonable efforts to expedite litigation consistent with the interests of the client," under Colo. R.P.C. 3.2, and (b), in ex parte motions for additional time to file returns of service, informs the court of "all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse," under Colo. R.P.C. 3.3(d). In Colorado, service of process can be effected after the statute of limitations has run.⁴

Harm to the defendant usually can be avoided by dismissing a frivolous complaint before a responsive pleading is due. In addition, "The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail."⁵

2. Solicitation And Advertising

Although the Colorado Rules of Professional Conduct do not define "solicitation," the pre-1993 Colorado Code of Professional Responsibility defined that term to mean:

This definition is persuasive and accurate, if not controlling, under the Colorado Rules of Professional Conduct.

Colo. R.P.C. 7.3(a) prohibits in-person or telephone solicitation from a "prospective client with whom the lawyer has no family or prior professional relationship where a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain." A "prior professional relationship" means a prior attorney-client relationship.⁷ All forms of solicitation are prohibited when the prospective client has "made known to the lawyer a desire not to be solicited" or when the solicitation "involves coercion, duress or harassment."⁸ All written, recorded or electronic solicitations must clearly and conspicuously state "this is an advertisement" on the envelope and at the beginning and end of the communication.⁹ In other words, solicitation communications must be marked as advertisements, but advertisements to the general public need not.

Colo. R.P.C. 7.3(c) prohibits lawyers from soliciting professional employment from a "prospective client believed to be in need of legal services which arise out of the personal injury or death of any person by written, recorded, or electronic communication," with two exceptions: (a) the lawyer has a family or prior professional relationship with the prospective client, or (b) "the communication is issued more than 30 days after the occurrence of the event for which the legal representation is being solicited."¹⁰ Solicitations made more than 30 days after the accident must comply with the following rules:

1. The communication is prohibited if the lawyer "knows or reasonably should know" that the prospective client is already represented by counsel in the matter.
2. Written communications made by a lawyer other than the lawyer who will actually handle the matter must so state.
3. Written communications may not be "made to resemble legal pleadings or other legal documents."
4. Mailed communications may not reveal the "nature of the prospective client’s legal problem" on the outside of the mailing.
5. A copy or "recording" of the communication and a "sample" of the envelopes must be kept for four years after dissemination.¹¹

Colo. R.P.C. 7.2 on advertising and Colo. R.P.C. 7.3 on solicitation do not apply to communications "authorized by law."¹² Thus, notices to members of a class in class action litigation are "authorized by law" under C.R.Civ.P. 23(c)(2).¹³ In addition, the First Amendment to the United States Constitution might displace these ethical rules, or at least prevent courts from imposing a blanket ban on communications by class counsel with putative class members.¹⁴

A particularly unsavory example of unethical solicitation in a products liability case is V v. State Bar.¹⁵ In that case, an attorney telephoned a marine at the hospital a few days after the marine was involved a helicopter crash. Four or five days after the accident the attorney met with the marine in the hospital and explained that he represented parties in a crash of another helicopter of the same make. The attorney said he was developing a theory that the helicopter was not crashworthy because the seats were not cushioned against impact. He then crossed the line from investigating the other case to soliciting new representation, however and left his card with the injured marine.

Immediately thereafter the attorney had a similar conversation with the other injured marine, who had just been released from intensive care and told he might never walk again. In fact, he became a paraplegic. The second marine told him that a lawsuit was the "furthest thing from his mind" and that maybe they could discuss it later. The attorney eventually signed up the marines with contingent fee agreements and conducted some investigation. He led them to believe he had filed suit but later abandoned the case and lost contact with his clients. At his disciplinary hearing he explained that he dropped the case because it would cost $100,000 to develop expert evidence on his crashworthiness theory, and he could not share that cost with his other helicopter case because it settled. For improper solicitation and other misconduct the California Supreme Court suspended the attorney for five years.

2. Multiple Representation: Defendants With Limited Assets

Lawyers may and often do represent multiple plaintiffs or claimants in a single case. When the plaintiffs have potential claims against one another, for example the driver and the passenger in a personal injury case, representation of one client may be directly adverse to another client within the meaning of Colo. R.P.C. 1.7(a). Even without potential cross-claims, however, representation of one client may be "materially limited by the lawyer’s responsibilities to another client" under Colo. R.P.C. 1.7(b) if the defendant or his insurer has insufficient assets to satisfy all claims.

Whether Colo. R.P.C. 1.7(b) is implicated in this context depends upon the information about potential damages and available funds known at the outset of the representation or later learned in discovery.¹⁶ Unrealistic projections by either an overly optimistic plaintiff or a defendant crying poverty must be taken into account. Common sense also dictates that the greater the disparity between the aggregate amount sought and the amount available, the more acute the conflict.¹⁷

Analogously, these considerations are illustrated in CBA Ethics Committee Formal Opinion 58: Water Rights, Representation of Multiple Clients (Revised October 14, 1995).¹⁸ That opinion states that, although "all water rights owners are in competition with one another for the same limited resource, . . . the degree of actual competition involved between water rights owners varies substantially from case to case, and in many cases, there is not a real competition at all."¹⁹ The opinion concludes that, depending on the facts, representation of one water right claimant may create a potential for "impairment" of another client’s water rights that is either "remote" and, thus, waivable, or "likely" and, thus, nonwaivable.²⁰

Generally, waiver of a conflict under these circumstances requires (a) a reasonable belief on the part of the lawyer that representation of one client will not adversely affect representation of the other client and (b) the client’s verbal or written consent after disclosure of the conflict. Whether a client’s consent is effective is governed by the objective standard set forth in Colo. R.P.C. 1.7(c). "

Common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of

Rule 1.7(b) are met."²¹ Also, a potential conflict based on limited available funds might arise from the representation of different claimants, or classes of claimants, in separate actions.

A limited funds conflict is particularly acute when the plaintiffs are not similarly situated, particularly if there is an issue of contributory negligence. For example, in North Carolina State Bar v. Whitted,²² a lawyer represented the mother of a young man who was killed when the car in which he was a passenger collided with another vehicle. The insurance company made a $50,000 policy limits settlement offer to all four occupants of the car, including the deceased’s mother. The lawyer subsequently undertook representation of the mother of the driver of the car, and he "explained to her that she would not get as large a share of the settlement proceeds as the representatives of the other occupants of the car since her son had been driving."²³ Indeed, the mother of the driver received $4,000, while the mother of the deceased passenger received $15,333. The court found that the lawyer violated the conflict of interest rules, reasoning that "any increase in the share one received from the available fund diminished the available funds from which the other could draw."²⁴

In contrast to Whitted, Proposed Opinion 251 of the North Carolina Bar Association Ethics Committee concludes that, with appropriate disclosure and consent, the same attorney could represent four unrelated adults on their individual claims arising from an accident which occurred when the bus on which they were riding collided with an automobile. As in Whitted, there were limited insurance funds available; unlike Whitted, there was no issue of contributory negligence. In part bowing to reality, the Committee found that a lawyer may determine that he or she will be able to facilitate an acceptable division of the insurance proceeds among the multiple claimants without advocating against the interests of any of the claimants. Moreover, to require each claimant to have a separate lawyer to prove liability may result in the duplication of effort and expense on the part of the claimants. Therefore, a lawyer may represent multiple claimants provided there are no conflicts with regard to the liability issue and the lawyer obtains informed consent from all the claimants at the beginning of the representation. The disclosure to the claimants must include an explanation of the consequences of limited insurance funds and the possibility that there will be a dispute among the claimants as to the division of the insurance proceeds.²⁵

Finally, a Connecticut lawyer contemplated simultaneous representation of two heirs and one claimant of a probate estate with limited assets. The Connecticut Bar Association Ethics Committee described the problem as follows: "Anything that the lawyer achieves for one client may come at the direct expense of another client. The best interest of each client may be served by negotiating a settlement. But should the lawyer represent all three of the parties, the lawyer could not act as an advocate or advisor to each in negotiation." In addition, the Committee stated, "Joint representation threatens confidentiality for it would be difficult for a lawyer to suppress her knowledge of what she learned from one client that could be used to the advantage of another client." The committee concluded that multiple representation in these circumstances was inappropriate and the conflict nonwaivable.²⁶

2. Settlement Negotiations

If the lawyer determines, after client consultation and consent, that multiple representation in this circumstance is permissible, ethical issues remain for settlement or trial. The Comment to Colo. R.P.C. 1.7 states that a lawyer "may not represent multiple parties to a negotiation or settlement whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them."²⁷ Assuming that the differences in interest among the clients are not "fundamentally antagonistic," informed consent is required under Colo. R.P.C. 1.8(g) in order for the lawyer to participate in the settlement process on behalf of multiple plaintiffs. That rule states, in relevant part, that a lawyer who "represents two or more clients shall not participate in making an aggregate settlement of the claims of . . . the clients . . . unless each client consents after consultation, including disclosure of the existence and nature of all the claims . . . involved and of the participation of each person to the settlement."

In other words, the plaintiffs may need to sign a waiver both at the outset of the litigation and at the time of any aggregate settlement. "For example, where the amount of proceeds in a case will not be sufficient to cover the claims of both clients, a lawyer will be severely limited in negotiating settlements and it would be preferable that the negotiations be conducted by separate counsel for each client."²⁸ Engagement agreements that purport to cede settlement authority to plaintiffs’ counsel may be unenforceable.²⁹

It may be possible and desirable, however, to narrow the scope of the representation, under Colo. R.P.C. 1.2(c), to exclude allocation issues upon settlement. The plaintiffs would be left to decide amongst themselves how to divide up any settlement monies. This solution is impractical, if not impossible, if the case goes to trial. Proposed Opinion 251 of the North Carolina Bar Association states that, in that instance, "the lawyer must zealously represent the damage claims of each of the claimants and let the jury decide the amount that each will recover."³⁰

An alternative to trial or allocation by the clients themselves may be mediation by the attorney. Proposed Opinion 251 of the North Carolina Bar Association would permit a lawyer to "facilitate mediation among the claimants to determine how the offer will be divided," or recommend an equitable division of the settlement offer if the lawyer can do so impartially.³¹ Lawyers are permitted to act as intermediary between clients under the conditions set forth in Colo. R.P.C. 2.2, including, notably, the uniquely Colorado requirement that disclosure and consent to the lawyer’s intermediary role be in writing.³² The North Carolina Opinion goes on to state that the lawyer must withdraw from such a multiple representation "if the lawyer is placed in the role of advocate for one or more of the claimants as against the other claimants. The lawyer must also withdraw from the representation if one or more of the claimants does not agree to accept the settlement offer. If the lawyer must withdraw, the lawyer may continue to represent one or more of the claimants only with the consent of the claimants whose cases the lawyer relinquishes."³³

In cases involving large plaintiff groups, e.g., mass tort litigation, self-allocation among plaintiffs or mediation by the lawyer may not be logistically possible. In addition, there is more likely to be disagreement among plaintiffs over whether to accept a settlement offer or proceed with litigation. When the availability of recoverable funds is not an issue, the lawyer may be able to proceed with settlement on behalf of some but not all the plaintiffs by obtaining the clients’ informed consent or, again with client consent, separate counsel for nonsettling parties.³⁴

Limitations on available recovery funds tend to increase pressure to settle and hence, potential antagonism among plaintiffs, yet those same limitations tend to decrease the financial feasibility of hiring separate counsel. As a practical matter, letting the plaintiffs decide as a group whether to accept a global settlement proposal may be the only alternative, because "

an impermissible conflict may exist by reason of . . . the fact that there are substantially different possibilities of settlement of the claims . . in question."³⁵ "Conflicts of interest and associated tradeoffs among plaintiffs are an unavoidable part of all group lawsuits and all group settlements. There being no way to eliminate conflicts from multiple-claimant representations, the only question is how to deal with them."³⁶

Fortunately, although motions to disqualify counsel representing different plaintiff classes are not uncommon,³⁷ group settlements have generated few attorney malpractice or disciplinary cases.³⁸ The reality is that lawyers representing large client groups routinely handle allocation matters and do so with minimal supervision. The extent of their involvement varies from lawyer to lawyer and from case to case. Some lawyers handle all types of apportionment decisions. Others feel comfortable negotiating individual settlements but not carving up lump sums. Some employ third parties to look over their shoulders as they do allocation-related work. Others have third parties do the actual apportioning, effectively withdrawing from the process after bargaining for a lump sum.³⁹

2. Expert Witnesses

It is improper to pay an expert witness a contingent fee.

40 It is a violation of Colo. R.P.C. 3.4(b) for a lawyer to do so, because such a fee constitutes an "inducement to a witness that it prohibited by law."⁴¹

Whether it is improper for a lawyer to engage in ex parte contacts with the opposing expert witness is less clear. ABA Formal Opinion 93-378 (November 8, 1993) concludes that if a case is pending in federal court or in a jurisdiction, like Colorado, that has adopted an expert-discovery rule patterned after F.R.Civ.P. 26(b)(4), such contacts "would probably" violate Rule 3.4(c), which states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." The rationale is that the rules of procedure in these jurisdictions provide specific and exclusive procedures for obtaining discovery of expert opinions and the bases therefor, so ex parte contacts with expert witnesses would violate these rules. What little legal authority exists on the subject supports the view that such contacts are indeed unethical.⁴²

3. Common Areas Of Legal Malpractice Liability In Products Liability Actions

Failing to preserve evidence is perhaps the most common source of malpractice liability for plaintiffs’ products liability lawyers. In Galanek v. Wismar,⁴³ a former client sued an attorney for legal malpractice and negligent spoliation of evidence. The attorney allowed an allegedly defective Honda to be destroyed, although not before he had an accident reconstructionist take photographs and measurements of the car. After the plaintiff’s opening statement at the trial of the malpractice action, the trial judge granted the attorney’s motion for a nonsuit on the grounds that the vehicle was unavailable. Thus, the client could not prove that but for the attorney’s negligence, she would have prevailed in her products liability action. The California Court of Appeal reversed, reasoning that the attorney carries the burden of proving that his negligent failure to preserve evidence did not cause the client to lose a meritorious claim.

In contrast, in Sheppard v. Krol,⁴⁴ the Illinois Appellate Court affirmed the dismissal of a legal malpractice claim alleging that the attorney who represented a client injured by an allegedly defective forklift. The client alleged that the attorney failed to ascertain the identity of the forklift truck, retain a mechanical engineer to inspect the forklift, sue the manufacturer or seller of the forklift, impound the forklift and preserve and inspect the forklift. The court of appeals upheld the dismissal of the legal malpractice action because, without the forklift or the identity of the manufacturer or seller, the client could not prove that but for the attorney's negligence, the client would have succeeded in the case within the case.

The client may also bear some responsibility to preserve evidence. In Thomas v. Lusk,⁴⁵ the California Court of Appeal reversed a legal malpractice jury award against an attorney for failing to make reasonable efforts to locate a hammer that caused severe injury to his former client’s left index finger when the hammer’s metal head flew off in mid-swing. The client settled with the manufacturer for $35,000 then recovered in excess of $88,000 from the attorney after a jury verdict, leaving the attorney responsible for the loss of the hammer to present at trial. The California Court of Appeal reversed, holding that the trial court erred in shifting to the attorney the burden of proving that his negligent failure to locate the hammer was not a legal cause of the plaintiff’s inability to recover more from the manufacturer. Although the evidence showed that the attorney was negligent in failing to make prompt efforts to locate the hammer, the court of appeals held, the evidence also showed that the client’s efforts to locate the hammer prior to retaining the attorney were likewise deficient.

Entrusting the insurance company with the evidence may be a mistake. In Fontanella v. Chrysler Corp.,⁴⁶ a Connecticut trial court dismissed, as not ripe until resolution of the underlying product liability action, a legal malpractice action for failure to preserve an allegedly defective pickup truck. The alleged malpractice was advising the client to convey title to the pickup truck to his insurance company, which apparently allowed the vehicle to be destroyed. In Murray v. Farmers Insurance Co.,⁴⁷ the Idaho Supreme Court affirmed a jury verdict in favor of an attorney charged with failing to preserve an allegedly defective Oldsmobile. The insurance company had the car towed to a salvage yard, and the vehicle was destroyed after the attorney failed to respond to a notice to that effect.

2. Failure To Identify Or Bring A Products Liability Claim

In Snyder v. Queen Cutlery Co.,⁴⁸ a Pennsylvania court conducted an ancillary proceeding, incident to a legal malpractice action, to examine an allegedly defective blade polishing machine. The lawyer negligently advised the plaintiff that his only recourse for an injury to his hands resulting from use of the blade polishing machine was a worker's compensation claim. The attorney failed to advise of a possible products liability claim against the machine’s manufacturer.

In Matera v. Catanzano,⁴⁹ however, a New York appellate court reversed a jury verdict against an attorney in a legal malpractice action for failure to bring a strict products liability action against the manufacturer of a conveyor belt that allegedly caused plaintiff's injuries. The evidence supported the attorney's testimony that an action against the manufacturer would have failed. The accident would not have occurred but for the performance of various alterations to the conveyor belt subsequent to its manufacture.

In Horn v. Moberg,⁵⁰ an attorney brought an action against several defendants based on a fire that destroyed the plaintiffs’ mobile home. One of the claims was a products liability claim against Maytag based on allegations that the fire originated in the plaintiffs’ dryer. The attorney withdrew from the case after his expert witnesses advised him that they could not opine that the fire originated in the dryer. The plaintiffs did not obtain new counsel and eventually dismissed their claim against Maytag. The plaintiffs later sued the attorney for legal malpractice, and a judgment based on a jury verdict was entered against the attorney for not adequately preparing the products liability action. The Washington Court of Appeals reversed, finding that the proximate cause of the plaintiffs’ lost products liability claim was not any negligence by the attorney but, rather, the plaintiffs’ personal business judgment. The plaintiffs dismissed the claim against Maytag because they could not afford to litigate it, they were not sure the claim had merit, and they feared an award of sanctions against them.

3. Bad Settlement Advice

In McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990), the client sued the manufacturer of an explosive fuse cord for failure to instruct and warn about the danger of the product. The manufacturer made a settlement offer. The attorney disclosed to the client that he was currently negotiating to join defense counsel’s law firm. He nonetheless recommended the settlement offer to the client, adding that it was a "gift" to the attorney. The client accepted the settlement then sued the attorney for negligent settlement advice. The jury returned a substantial verdict, believing that the products liability case was worth much more than the settlement amount. The Court of Appeals affirmed.

In Malfabon v. Garcia, 898 P.2d 107 (Nev. 1995), the Nevada Supreme Court reversed the dismissal of a legal malpractice claim for recommending a low settlement offer after insufficient investigation of a products liability case against Toyota. The Nevada Supreme Court rejected the Pennsylvania approach whereby acceptance of a settlement offer by a client bars a claim for negligent settlement advice.

4. Conclusion

Products liability litigation is often more about science and procedural complexity than it is about principles of law. Identifying a potential products liability claim may require less legal training than training in engineering or chemistry. Product liability lawyers need to know at least enough about the science to know when to consult a scientist about a potential claim or how to present it.

Also, products liability litigation is often about satisfying a number of claimants who have banded together the fight a common opponent. More by silence than express recognition, there is an understanding that obtaining affordable representation in such cases may require claimants to sacrifice some of the autonomy and attention available in individual representation. To the degree that consumer reality outweighs ethical imperfections arising from multi-claimant representation, particularly where limited resources are available to satisfy all claims, the burden of finessing those imperfections falls on the product liability lawyer.

1 See Lafayette v. Rose, 173 Cal. Rptr. 621 (Cal. App. 1981) (reversing summary judgment against client in legal malpractice action where statute of limitations on product liability action against manufacturer of bone saw passed during five and one-half months after lawyer was retained but before bringing suit).

2 Id. (quoting Hazard & Hodes, The Law of Lawyering, 1992 Supplement §3.1:204-2).

3 C.R.Civ.P. 11(b).

4 Dillingham v. Greeley Publishing Co., 701 P.2d 27, 32 (Colo. 1985).

5 Cmt.2, Colo. R.P.C. 3.1.

6 Colorado Code of Professional Responsibility, Definitions (11); Ethical Consideration 2-9.

7 CBA Formal Ethics Opinion 98: Dual Practice, 26 The Colorado Lawyer 21, 22 n. 4 (April 1997) (citing Utah State Bar Ethics Advisory Opinion Committee Opinion No. 146A (April 28, 1995) and Michigan Standing Comm. on Professional and Judicial Ethics Opinion No. RI-135).

8 Colo. R.P.C. 7.3(b).

9 Colo. R.P.C. 7.3(d).

10 Colo. R.P.C. 7.3(c).

11 Colo. R.P.C. 7.3(c)(1)-(5).

12 Cmt., Colo. R.P.C. 7.2.

13 Id.

14 E.g., Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981).

15 779 P.2d 761 (Cal. 1989).

16 See, e.g, In re Joint Eastern and Southern District Asbestos Litigation, 133 F.R.D. 425, 432 (E.D. and S.D.N.Y. 1990) (filing of the complaint is operative time); Mandell & Wright v. Thomas, 441 S.W.2d 841 (Texas 1969) (signing of representation agreement is operative time); Alabama Formal Opinion RO-96-03 (March 13, 1996) (attorney might require waiver of conflict if discovery reveals limited assets for recovery).

17 See Texas Opinion 500 (August 1994) (material effect on multiple clients depends on limitations on funds available to pay judgment or settlement).

18 CBA Ethics Committee Formal Opinion 58 (Revised): Water Rights (Revised October 14, 1995), 24 The Colorado Lawyer 2701 (December 1995).

19 Id. at 2701.

20 Id. at 2704.

21 Cmt., Conflicts in Litigation, Colo. R.P.C. 1.7.

22 North Carolina State Bar v. Whitted, 347 S.E.2d 60 (N.C. App. 1986).

23 Id. at 61.

24 Id. at 64. Accord Texas Opinion 500 (August 1994) (lawyer may not represent driver and passenger injured in single accident caused by third party where third party has limited funds to pay possible judgment or settlement).

25 North Carolina Proposed Opinion R.P.C. 251 (April 3, 1997).

26 Connecticut Informal Opinion 89-18 (May 26, 1989).

27 Cmt., Other Conflict Situations, Colo. R.P.C. 1.7.

28 CBA Ethics Committee Formal Opinion 57: Conflicts of Interest (March 21, 1981), 11 The Colorado Lawyer 1249 1250 (May 1982).

29 Abbott v. Kidder Peabody & Co., 42 F. Supp. 2d 1046 (D. Colo. 1999).

30 North Carolina Proposed Opinion R.P.C. 251 (April 3, 1997).

31 Id.

32 Committee Comment, Colo. R.P.C. 2.2.

33 North Carolina Proposed Opinion R.P.C. 251 (April 3, 1997).

34 ABA Formal Opinion 93-371 (April 16, 1993).

35 Cmt., Conflicts in Litigation, Colo. R.P.C. 1.7.

36 C. Silver & L. Baker, Symposium: I Cut, You Choose: The Role of Plaintiffs’ Counsel in Allocating Settlement Proceeds, 84 Va. L. Rev. 1465, 1468-69 (November 1998).

37 E.g., In re Joint Eastern and Southern District Asbestos Litigation, 133 F.R.D. 425 (E.D. and S.D.N.Y. 1990).

38 C. Silver & L. Baker, supra at 1477.

39 Id. at 1475.

40 City and County of Denver v. Board of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

41 Colo. R.P.C. 3.4(c); see Cmt.,

3, Colo. R.P.C. 3.4 (common law rule in most jurisdictions is that it is improper to pay an expert witness a contingent fee).

42 See Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996); Olson v. Snap Products, Inc., 183 F.R.D. 539 (D. Minn. 1998); Arizona Opinion 88-01 (January 11, 1988); see also Oregon Opinion 1992-132 (ex parte contacts with opposing experts unethical in federal court but not in state court since no equivalent of F.R.Civ.P. 26(b)(4) in state court); Oregon Opinion 1998-154 (ex parte contacts with opposing experts permissible in Oregon worker’s compensation proceedings).

43 Galanek v. Wismar, 81 Cal. Rptr. 2d 236 (Cal. App. 1998).

44 Sheppard v. Krol, 578 N.E.2d 212 (Ill. App. 1991).

45 Thomas v. Lusk, 34 Cal. Rptr. 2d 265 (Cal. App. 1994).

46 Fontanella v. Chrysler Corp., 1997 Conn. Super. LEXIS 2971 (1997).

47 Murray v. Farmers Insurance Co., 796 P.2d 101 (Idaho 1990).

48 Snyder v. Queen Cutlery Co., 516 A.2d 71 (Pa. Super. 1986).

49 Matera v. Catanzano, 555 N.Y.S.2d 823 (App. Div. 1990).

50 Horn v. Moberg, 844 P.2d 452 (Wash. App. 1993).