In a criminal case, the lawyer shall abide by the client s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. The lawyer s duty to abide by the client s decisions regarding settlement places the lawyer on the horns of a dilemma in the fact pattern set out above. If that cannot be accomplished, the handling of the defense by the lawyer may become pertinent to the liability of the company. It also is obvious that the lawyer would face conflicting duties by representing both the insured and the insurer if facts bearing upon coverage were revealed by the insured. If the insured is the lawyer s only client, this information would be considered confidential.
Loyalty is an essential element in the lawyer s relationship with the client.
We have previously held that the insured is entitled to competent and zealous representation that is not adversely affected by prohibited conflicts of interest. Even if the lawyer reasonably believes that the representation will not be materially affected, the client must have the benefit of an explanation of the implications of the common representations and the advantages and risks involved before consent can be obtained. The mere act of urging the insured to consent, as part of the representation of the insured, would be affected by the desires of the insurer to cut down on defense costs by using one lawyer. It is easy to see where dual representation would be to the insurer s advantage, but difficult to see where such an arrangement would be recommended to the insured as being in the insured s best interest. Furthermore, conflicting interests may arise in the conduct of the litigation.