In Shaikh v. Waiters, 185 Misc 2d 52, 710 N.Y.S.2d 873 (Supreme Court Nassau County 2000), a case involving a lawyer representing both passenger and driver in a motor vehicle action, the court, after applying the disinterested lawyer test, held that joint representation was inappropriate and the consent to the same, given by the client, would not stand. Id.
The court held that by not suing the driver, a potential tortfeasor, who could and should have been sued, the passenger ran the risk of non-recovery if there was a verdict in defendant's favor. Id.
The court, found that under such circumstances, a disinterested lawyer would have advised the passenger to assert a claim against the driver and would have advised against consent to joint representation. Id.
Thus, despite the consent given, the court concluded that the disinterested lawyer test was not satisfied. Id.