*1 to avoid it and that failing the collision assumed the risk of collision. cause of the proximate was not the defect the tractor defenses, has interrelated and Thus, Deere two the defendant but on one defense charging jury trial say judge’s cannot that the reversal of a verdict require such error as to not the other created in favor of the defendant. All the Justices denied. Motion Gregory, JJ., Smith and v. CUNNINGHAM.
39110. COSCIA Justice. Chief Hill, Leonard that Cun- Cunningham alleging
Dante Coscia sued operated an so as to cause a negligently had automobile ningham sought Plaintiff injuries plaintiff. in certain resulting collision $75,000 Cunningham. damages Indemnity with the Travelers
Cunningham carries $10,000. Cunningham liability limit of America with a Company of be Cunningham to arranged for Travelers and Travelers contacted answer Dickins, Dickins filed an B. Jr. represented by Oliver filed a then any negligence. Cunningham in which “At all times the basis that: attorney Dickins on disqualify Dickins, Jr. was a full-time motion, to this the said relevant having an company, employee agent, servant not an and was in the outcome of this case financial indirect “In further lawyer.” Plaintiff independent practicing Cunningham, Leonard G. the defendant undertaking to of said and servant a full-time at the same time while Dickins, company and Oliver said insurance 9-402)] and in violation of Jr. are [OCGA § prohibiting provisions other than a association or cor- corporation, and certified its poration.” The trial court overruled immediate review. order for stipulated motion, had parties purposes deciding (Cunningham) facts, following: the insured including certain claimed by Travelers that
was advised assistance obtaining legal he wish to consider limit and that is exposure; Travelers protect his uninsured right Travelers has suit, under the to defend the suit; in this named a settle; is not and could not be his activities Georgia, of the State Bar of Dickins is member law; advised the insured has been this case constitute employed by by attorney that Dickins Dickins and Travelers suit, the insured was not advised Travelers to defend this Travelers;1 Dickins is a compensated by Dickins method to him exclusively assigned on matters who works *2 by legal work Travelers and who receives no income for Travelers; expenses office anyone from than and all of Dickins’ benefits, and retirement fringe including group benefits, by paid are Travelers.
The parties stipulated further type employment that Dickins’ designated by attorneys Travelers as “Staff Counsel” while employed compensated by on a case designated case basis are Counsel”; “Panel that decisions the settlement of cases are by made Travelers’ Department Claim whether the attorney defending Counsel; the case is Staff or Panel and that “Travelers’ relationship with Dickins with respect to Dickins’ adherence to the Code of Responsibility Professional is no different from Travelers’ that regard attorneys employs with other that it are not salaried but are compensated case-by-case on a fee basis.” Since is arguing that disqualified Dickins should be precisely because he is opposed panel Travelers’ staff counsel as counsel, apparent it is from this stipulation appeal latter that does any not raise issue representation as to dual panel both counsel and staff counsel owe duties to and therefore both the insurer and the insured.2
The sole issue here is representation whether Dickins’ (b) (Code of the insured 9-402), violates OCGA 15-19-51 Ann. § § provides which provided by “Unless otherwise law... it shall be any corporation, association, unlawful for voluntary company perform (a) do or any of the acts recited subsection of this Code alia, section [including, any person inter law for other than himself and to furnish legal attorneys],” services or or whether it falls within the exception to OCGA § § 9-403). by created OCGA Under § exception, 9-403), corporations OCGA 15-19-53 are 1 (D.N.J. connection, FSupp. In this see Kaudern v. Allstate 1967). having a of conflicts occasioned discussion of interest insured, attorney represent the interest of the insurer and same — Insurance,” “Developments Ga. L. Rev. 973-1013 Law attorneys in and attorney “employing prohibited litigation affairs or own immediate about their in issue. to the suit is not a may party.” are or be a activity furnishing Does the Thus the becomes: counsel” using “staff company an insurance attorney to an insured to defend (a company) full time of the insurance constitute issued the insurance by policy suit covered company’s “own activities and about” affairs”? liability limit of
Clearly, up policy the suit defense of constitutes defense if the and, not arise presumably, would
affairs” liability. limit of were within the recoverable impliedly By argument, plaintiff the thrust his motion and counsel” to “panel concedes use of limit damages sought defend its insureds where the “panel though law even some would not constitute a violation of regular frequent derive a substantial income from counsel” representation of an insurance to defend both company
The insurance *3 under coverage extent of the pay judgments the insured and to to the insurance requiring the policy. challenge provision the No to the Although made. no case company to defend the insured is that, found, these directly point given on has been we conclude the defense of the suit is within provisions, v. Ohio affairs. See Strother insurance 1939); (Comm. Co., Pleas Ct. Casualty 28 Ohio Abs. (Tex. Comm. Montgomery, Ins. Co. v. 138 SW2d Utilities 1065; Court, 1940), 138 SW2d at see App. adopted by Supreme ABA Opinion No. 282 Florida, Governing in In re Rules Supreme
The Court of (1969), adopt Florida, In refused to Attorneys Conduct Of 220 S2d 6 prohibited “house to its rules which would have an amendment insureds. representing their companies counsel” for insurance' between distinguishing Court found no basis for Florida case, fee” counsel. “particular special duties of “house counsel” and (8th Cir. 329 F2d 396 Denver-Chicago Trucking In v. Joplin 1964), overruling plaintiffs the court affirmed the trial court’s was attorney an strike the defendant’s answer filed counsel” for the defendant’s “house (4) Boykin Hopkins, v. Ga. 511 primarily relies on 15-19-51, 796)
(162 (1931), construe OCGA a case which did not SE §§ 9-402,9-403), predecessors, or their §§ it was although laws were enacted arose before these that case decided after were adopted. Boykin court held that the trial court in erred refusing enjoin incorporation corporation of a being formed to in engage general practice in court. Boykin’s But on can be summarized quoting one sentence from the “A opinion: corporation can not practice itself law, lawfully nor can it by hiring do so to conduct a general law pay, others for where the fees earned are to be and are received as profit by corporation.” income and Id. at 523. See also Pearle Optical v. State in Optometry, Bd. of Examiners 6) (133 (5, 374) (1963). Ga. 364 SE2d The case before us is not within the rule in Boykin announced because Travelers is not conducting a general pay. for others Rather it is fulfilling obligations contractual which arise under as well as defending its own eliminating limiting any recovery under the policy. This is within exception announced OCGA § corporation’s immediate affairs. That the insured has equal greater interest the outcome of the litigation does not eliminate the insurance company’s interest therein. Thus the trial court did not err denying motion to disqualify.
“Staff counsel” are subject
to the Code of Professional Re-
sponsibility just
as
attorney,
In
Capps,
Matter of
(297
249)
Judgment affirmed. All the Justices except Clarke and Bell, JJ., who dissent. January — Decided
Rehearing February 1983. Long, Weinberg, Ansley& Wheeler, Sidney Wheeler, F. Michael Bennett, T. appellant. for Gunter, Doffermyre, L. Cody, & Everette
Kilpatrick William Dickins, Jr., appellee. for Lyall, Alston, Gaines, Conley & Vickie Cheek Ingram, Miller G. amicus curiae. Justice, dissenting. view, my majority of the will deteriorate practice. public nature of the law It offends the step client a lawyer
because it moves the and his purely away personal relationship being one which undoubtedly acting commercial. “House counsel” in this case is and about” the insurance “own immediate affairs.” problem about the supposedly acting arises that he is seeds of possible insured’s own immediate affairs. It is here that the practice of prohibition against corporate conflict are sown and the lawyer that a transgressed. repeatedly the law has been We have held only can have involved in a matter. one master when he becomes my majority He is the trustee of his client’s interest. It is view that the I solemnity in this case weakens the of this trust therefore dissent. joins
I am authorized to state that Justice Bell this dissent. Rehearing. On Motion defense On contends rehearing, counsel’s fully counsel’s failure disclose to the defendant (see 1) constitutes relationship with Travelers text at footnote standards, in the thereby resulting violation of several ethical (Hence, on motion corporation. unlawful were if such disclosure rehearing, plaintiff impliedly concedes that made, in the unlawful engaged Travelers would not be law.) in the motion for violations of ethics raised Disciplinary Board as should be addressed to the State
rehearing injury suit personal do not the fact that defense of this change within the
affairs.” concur, except denied. All the Justices
Motion for JJ., Bell, Clarke and