It is a fundamental rule that a party to a litigation is permitted to be represented by only one counsel. It is equally fundamental that a party is entitled to representation by counsel of their own choosing. There are occasions, however, when these rules come into conflict, most notably where two parties are fully united in interest. In such circumstances, there is an important question as to whether those parties are entitled to separate counsel. The issue, which is a matter of discretion for the trial court, can have a profound impact on a trial.

Where the liability of one defendant is purely vicarious for that of another defendant, there is significant potential for both defendants to obtain an unfair advantage if they are permitted to be represented by separate counsel at trial. Even if they are prohibited from producing multiple expert witnesses in the same fields on the ground that such testimony would be cumulative, the attorneys would still have the ability to engage in tag-team cross-examinations, opening statements and summations. Therefore, where two defendants are united in interest on all issues at trial, efforts to have them represented by separate counsel must be carefully scrutinized by the trial court.

Obviously, we are not talking about situations in which the plaintiff's claims against the vicariously liable party also include claims of direct liability by that party. Nor are we contemplating cases in which there is a jury question as to whether that party is vicariously liable for the other. In each of those situations, the party as to whom vicarious liability is asserted is clearly entitled to be represented by their own counsel to defend them on those issues. However, where the liability of two defendants is identical on every issue, the right of each to choose their own counsel must be weighed against the tactical disadvantage that such double representation would visit upon the plaintiff.

The issue has been the subject of only limited judicial attention. In the medical malpractice context, it has been addressed only once—in a recent decision by the Third Department in Lasher v. Albany Mem. Hosp., 161 A.D.3d 1326 (3d Dept. 2018). Before turning to that decision, a discussion of the competing underlying legal principles is warranted.

Underlying Principles

As noted above, it is a basic rule that a party may not be represented by more than one attorney in a litigation. See Stinnett v. Sear Roebuck & Co., 201 A.D.2d 362, 364 (1st Dept. 1994); Dobbins v. County of Erie, 58 A.D.2d 733 (4th Dept. 1977); Hess v. Tyszko, 46 A.D.2d 980 (3d Dept. 1974); Kitsch v. Riker Oil Company, 23 A.D.2d 502 (2d Dept. 1965). It was observed in Kitsch that “[t]o allow more than one attorney for a party in a single action would play havoc with the established responsibility in respect to professional representation in civil proceedings and in the processes of litigation.”

That is not to say that a party may not be represented at trial by two attorneys from the same law firm splitting the duties. There is nothing improper about one attorney “second-seating” another. However, only one attorney may give the opening statement for a party, only one may give that party's summation, and the direct or cross-examination of any witness may be conducted by only one attorney.

Double representation of a party is generally permitted only in circumstances in which there may be a potential divergence of interests. In Chemprene v. X-Tyal Int'l, 55 N.Y.2d 900 (1982), where the plaintiff sued to recover money due on the sale of products and the defendant counterclaimed for damages caused by defects in the products, the court, after noting that the issue of double representation is discretionary, found no abuse of discretion by the trial court permitting the plaintiff to have separate representation provided by its liability insurer relative to the counterclaim. The court observed that “the nature of the claims involved could suggest the possibility of diverse interests and a need for two attorneys.”

Potentially divergent interests and attendant trial strategies are the reason why double representation is permitted in motor vehicle accident lawsuits, where a party is both a plaintiff seeking compensation for injuries and a defendant whose insurer is providing a defense. See Russell v. City of Buffalo, 34 A.D.3d 1291 (4th Dept. 2006); Rosenzweig v. Blinshteyn, 149 A.D.2d 280 (2d Dept. 1989). However, even in that circumstance, it is not an abuse of discretion to deny a party double representation where the potential risk of divergent interests is outweighed by “the actual risk of confusion always present in multiple representations … .” Kallivokas v. Athanasatos, 151 A.D.2d 396 (1st Dept. 1989).

The general rule against double representation of a party may apply where separate individuals or entities should be treated as one for the purpose of their interest at trial and there is no potential for divergence of their interests. In Lorne v. 50 Madison Ave., 83 A.D.3d 537 (1st Dept. 2011), an action for negligent construction, the court held:

Plaintiff and her husband held the real property as tenants by the entirety, and thus, owned the property “as if they were one person” … . Furthermore, plaintiff and her husband pursued their interest in the property as a joint interest. Accordingly, because plaintiffs' interest is joint, and because the matter does not involve special circumstances or highly complex litigation, the court properly determined that plaintiff is not entitled to separate representation … .

Therefore, where two parties are fully united in interest by virtue of the vicarious liability of one for the other, and there is no potential for divergence of their interests, the rule against double representation should prevent those parties from being represented by different counsel. That was the holding of the court in Lukic v. Garrett, 195 Misc.2d 438 (Sup. Ct., Westch. Co. 2003).

The plaintiff in that case was injured when the motor vehicle in which he was a passenger struck a tree. At the time of the collision, the vehicle was being driven by the grandson of its owner, both of whom were covered under the owner's policy. The driver was also covered under a separate policy to his father by a different insurance company, which was regarded by that insurer as excess to the owner's policy. The owner was represented by a lawyer hired by her insurer, and the driver was represented by another lawyer hired by his father's insurer. In resolving a motion by the plaintiff to dismiss the pleadings served by the lawyer for the driver, the court relieved that lawyer as counsel and directed that the lawyer for the owner appear for and defend the driver. That decision turned on the fact that the owner was vicariously liable for the driver under Vehicle and Traffic Law §388.

The court noted that “[a]lthough having separate counsel for multiple defendants does not usually create any issues in most negligence situations, it does where, as here, the liability that is imposed on one of those defendants is strictly vicarious.” It found that in light of the statutory vicarious liability, absent a conflict of interest or a valid disclaimer of coverage by the primary carrier, “there can only be one attorney representing those covered under the primary insurance policy” and that the “excess carrier must be relegated to a passive role in the litigation.” The court remarked that “[t]o rule otherwise would be contrary to the spirit and orderly process of litigation that cases [prohibiting double representation] endeavor to maintain.”

Although Lukic was premised in part on the statutory vicarious liability and the primary and excess designations of the two policies, the underlying rationale applies to any case in which the liability of one defendant is purely vicarious of that for another defendant. Thus, where one defendant is vicariously liable for another defendant based upon respondeat superior or a non-delegable duty, and there are no factors or claims that can cause their interests to diverge, the rule against dual representation should apply to those defendants.

In this circumstance, however, the rule against double representation can come into conflict with the rule that a party is entitled to representation by counsel of their own choosing. See Ross v. Manhattan Chelsea Assoc., 194 A.D.2d 332 (1st Dept. 1993); Schulman v. Consolidated Edison Co. of N.Y., 85 A.D.2d 186 (1st Dept. 1982); Phillips v. Chevrolet Tonawanda Div. of General Motors, 43 A.D.2d 891 (4th Dept. 1974).

Citing the constitutional underpinnings of this rule, the court in Schulman held that it was reversible error to require the defendant motor vehicle owner to be represented at trial by the same attorney as the driver, who was her husband. Prior to trial, the owner asserted a defense that her husband did not have permissive use of the vehicle, which would absolve her of liability, and by the time of trial she and her husband were divorced. Although the trial court had ruled against her on that defense before the trial began, such that she was vicariously liable for him, the Appellate Division found that she was entitled to be represented by the counsel of her choosing.

'Lasher'

A party's right to choose their own counsel figured prominently in the Third Department's recent decision in Lasher v. Albany Mem. Hosp. The trial court permitted the defendant hospital in that case to be represented by its own counsel after all direct claims of liability were dismissed and it was exposed only to vicarious liability if the defendant doctor was found liable. The injured plaintiff alleged that she sustained brain damage as a result of the failure of the defendant emergency room doctor to timely consult a neurosurgeon and timely arrange a transfer to another facility capable of treating her condition. The action was brought against the hospital, the emergency room physician and the group that employed her, with the latter two defendants represented by the same counsel and the hospital represented by separate counsel.

Prior to trial, the plaintiffs sought to limit all defendants to representation by one attorney or, alternatively, to limit the participation of the hospital's counsel because they all had identical defenses. However, since there were claims of direct negligence by the hospital alleged in plaintiffs' bill of particulars, the trial court denied that application. At the close of the plaintiffs' case, the trial court granted the hospital's motion to dismiss all claims of direct negligence against it, and it remained in the case only for its potential vicarious liability for negligence by the emergency room doctor. The plaintiffs then renewed their motion to limit the role of the hospital's counsel. The trial court denied the motion, but promised to exert control over the cross-examination of the remaining witnesses by the hospital's counsel to prevent any attempt to “reiterate or to plow ground that has already been plowed by one side or the other.” The jury returned a verdict in favor of the defendants, finding no negligence by the emergency room doctor.

On appeal, the plaintiffs asserted that there were multiple errors by the trial court, including permitting the full participation of attorneys for the hospital, and for the doctor and her group throughout the trial because they were united in interest. The Appellate Division rejected that argument.

The court commenced its analysis with the trial court's authority under CPLR 4011 to regulate the conduct of a trial to achieve a speedy and unprejudiced disposition of matters in a setting of proper decorum, and the right of a defendant to choose his or her own counsel. While noting that this right “is not without limit,” the court observed, it “will not yield unless confronted with some overriding competing public interest … .”

The court then separately addressed the trial court's denials of the plaintiffs' applications before the trial and after the direct claims against the hospital were dismissed. With respect to the initial application, when the plaintiffs still had claims of negligence by the hospital in addition to vicarious liability, the Appellate Division, citing Chemprene, found that “[g]iven the separate and distinct liabilities of [the hospital and the other defendants] at this juncture of the litigation, there was simply no basis upon which to limit the participation of [the hospital's] attorney … .”

In addressing the renewed motion following dismissal of the direct claims, the Appellate Division stated:

While the dismissal of the direct negligence claims rendered [the hospital's] potential liability purely vicarious in nature, we are unable to conclude that Supreme Court's refusal to limit the role of [the hospital's] counsel during the remainder of the trial to essentially that of a spectator was in error. Because [the hospital's] liability would be determined by the jury's findings in relation to plaintiffs' claims of negligence against [the doctor, the hospital] was entitled to participate in the efforts to defeat those claims … .

Noting the trial court's promise to exert control to prevent duplication, the Appellate Division found that “the record reflects that counsel's cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination.” It then concluded:

The balanced approach taken by the court served to ensure defendants' valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof. Under these circumstances, we find no “clear abuse of discretion” in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof.

Analysis and Conclusion

While the court's analysis of the issues covered duplication, it did not take into consideration the advantages conferred on the entire defense by having two lawyers cross-examining the plaintiffs' witnesses and two lawyers summing up to the jury. Double cross-examinations are a particularly significant advantage because one lawyer may pick up on something the other lawyer missed. This double-teaming can provide a huge edge to the defense. While some attorneys representing plaintiffs might welcome the “underdog” impression created by this dynamic, most lawyers would probably prefer to do without it.

Several points can be taken from Lasher.

First, the court only found that there was no clear abuse of discretion in permitting the hospital to have its own counsel. It did not hold that the trial court was required to do so. Therefore, a trial court in a different case may properly find that parties fully united in interest should not have double representation.

Second, the circumstances of this case made it difficult for the trial court to reach a different result. The plaintiffs' application before the trial was plainly without merit because the hospital's potential liability was not solely vicarious and it had a clear right to defend the direct claims against it. Once the hospital's lawyer participated in the trial through the plaintiffs' case, it could have been prejudicial to the hospital if that lawyer was suddenly absent from the courtroom or present and not participating for the remainder of the trial. Therefore, the applications by the plaintiffs in Lasher were made the under circumstances that were suboptimal for obtaining the requested relief.

Attorneys representing plaintiffs in cases where double representation is an issue—assuming they would prefer to prevent it—should only make such an application where there is a complete unity of interests and no possibility of divergence or conflict between the defendants, and it should be made before jury selection. Another factor which should be taken into consideration upon such an application is whether the active defendant and the vicarious defendant have the same insurer, which should militate against double representation. Likewise, in a malpractice action, where the doctor is an employee of the hospital or part of a hospital faculty practice, double representation would be particularly inappropriate.

Determinations as to how to avoid double defense representation may also be made before an action is commenced. If a physician is unequivocally someone for whom the hospital would be liable and the hospital has sufficient insurance coverage, it may be unnecessary to sue the doctor.

In short, determinations regarding double representation will be dictated by the decisions of plaintiff's counsel, the defendants' insurers, and ultimately, in some cases, by the court.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.