concurring and dissenting in part.
I concur in the reversal of the judgment of the district court and in the remand for a new trial because of errors of the district court in the exclusion of evidence and in granting judgment for defendants n. o. v.
In my opinion, it is not the law of Tennessee as asserted by Tomlin’s counsel, that an attorney who is honest and acts in good faith is exempt from liability to his client in a legal malpractice action for damages sustained by the client as a result of the conflicts of interest, negligent or improper conduct of the attorney in the investigation, trial, and appeal of his client’s case.
I do not understand that the amicus briefs filed by the bar associations have endorsed any such proposition.
It is not the function of the federal judiciary in a diversity case to innovate by establishing new and untried principles of state law, which the state courts may later repudiate.
If an attorney in Tennessee with a conflict of interest, who is honest and acts in good faith has a privilege exempting him from liability for damages sustained by his client as a result of the attorney’s conflict of interest and negligence in handling his client’s lawsuit, then a fortiori the same principle of law should apply to a physician who is honest and acts in good faith and negligently performs an operation on his patient which results in injury to or in the death of his patient.
We have applied Tennessee law in holding physicians liable in damages to their patients in medical malpractice cases. O’Neill v. Kiledjian, 511 F.2d 511 (6th Cir. 1975); Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970). In neither of these two cases did the physician have the audacity to contend that he was honest and had a good faith privilege to be exempt from liability. In malpractice cases there is no reason for ever exempting attorneys from liability without extending the same exemption to physicians.
It should not be forgotten that a solemn relationship of trust and confidence exists between an attorney and his client which ought never to be betrayed. The public ought not to be fearful of engaging the services of an attorney who is exempted by law from liability for his misconduct or negligence.
Reliance by the district court on Stricklan v. Koella, 546 S.W.2d 810, 814 (Tenn.App.1976) cert. denied by the Supreme Court of Tennessee for such an outrageous proposition was misplaced as we pointed out in the unanimous decision of our panel (Edwards, Chief Judge, Weick and Celebrezze) reported in 593 F.2d 33, 42-44. Even if Koella supported the erroneous decision of the district judge, which it does not, we would not be required to follow it, because it would be contrary to decisions of the Supreme Court of Tennessee and Tennessee appellate decision as we pointed out and is not supported by any American decisions.
I agree also with the majority that the district court erred in holding that the harm done to plaintiffs was “sheer speculation” and therefore beyond the province of the jury. There was abundant evidence of negligence, improper practice and of expert testimony on causation. A factual question *939existed for determination by the jury and not by the district court.
Conflicts of Interest
The record is clear, as we pointed out in our panel decision, that the insurance company was obligated under the provisions of its policy, to defend its insured Woodruff and his two daughters in the suits filed against them in the state court, by Teague for damages to his truck and by Pomeroy for personal injuries alleged to have been sustained by him in the collision as a result of the negligence of Patricia, the driver and Joan, the passenger in the automobile.
Woodruff, on the other hand, had a claim for damages to his car against Teague, Pomeroy and Nobles. Woodruffs two daughters Joan, age 15 and Patricia, age 16, had substantial claims against Pomeroy, Teague and Nobles for terrible personal injuries sustained by the two girls as a result of the negligence of the two truck drivers in impeding traffic in both lanes, of the public highway.
Leathers, the insurance adjuster, solicited all of these claims for Tomlin. He told Woodruff that he should have an attorney, that the statements of the witnesses were inconsistent and were changing. Undoubtedly the purpose of the solicitation was to help the insurance company in the defense of the suits which Pomeroy and Teague were about to bring against the two girls for personal injuries sustained by Pomeroy and property damage sustained by Teague. Leathers recommended to Woodruff that he engage Tomlin to represent his two minor daughters, Joan and Patricia.
Acting on Leathers’ recommendation, Woodruff did consult with Tomlin and retained him to represent his two daughters. Leathers was not bound by any ethical considerations but Tomlin, as an attorney at law, was bound by the Canons of Professional Ethics of the American Bar Association, particularly Canons 6 and EC5-14 and EC5-15 set forth at length in our panel decision (593 F.2d 39, 40) which had been adopted by the Supreme Court of Tennessee in 185 Tenn. 889.
As we pointed out in our panel decision, the Canons required Tomlin to disclose to his clients at the time of the retainer “all the circumstances of his relations to the parties and any interest in or connection with the controversy which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests except by express consent of all concerned given after full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when it is his duty to contend for that which duty to another client requires him to oppose.” (Opinions on Professional Ethics, p. 22). See DR5-105, EC5-14, EC5-15, Volume 5A Tennessee Code Annotated Pages 115 and 119, 185 Tenn. 889.
Tomlin at the time of his retainer never discussed with his clients any of the circumstances of his relation to the parties and any interest in or connection with the controversy which might influence the clients in the selection of counsel. He never told Joan that she had a claim against her sister Patricia and that the investigation of the insurance adjuster indicated that the statements of witnesses were conflicting. When suits were filed in the state court by Tomlin against Teague, Pomeroy and Nobles in behalf of Joan and Patricia to recover damages for their serious personal injuries and separate suits were filed in the state court by Pomeroy and Teague against the two girls for personal injuries sustained by Pomeroy and damages to Teague’s truck allegedly caused by the girls’ negligence, Tomlin never advised them that he had a conflict of interest and that Joan should retain separate counsel. The girls and their father were never informed by Tomlin as to their rights and hence could not have given an informed consent to Tomlin’s representing them. These suits were all consolidated for trial in the state court.
The failure of Tomlin to advise his clients of their rights and his conflict of interest, his failure to advise Joan and her father that Joan should obtain separate counsel, and his failure to withdraw from the case when the conflict became very obvious to *940him is responsible for most of the damages resulting to Joan, Patricia and her father as a result of Tomlin’s misconduct and negligence.
The fact that Tomlin was honest and was acting in good faith, as he claims, did not give him a license to violate the ABA Canons of Professional Ethics as adopted by the Supreme Court of Tennessee or authorize him to represent clients when he had conflicts of interest which he never disclosed to his clients.
There is Tennessee authority on this subject directly in point. In Holcomb v. Steele, 47 Tenn.App. 704, 342 S.W.2d 236 (1958), cert. denied, by Supreme Court of Tennessee, June 5, 1959, a firm of attorneys undertook to represent both the driver and the passenger of an automobile in an action against the driver of another car for personal injuries arising out of an automobile collision between the two automobiles. The firm of attorneys neglected to advise the passenger of her rights to sue her driver and even recommended that she accept a $400 settlement of her claim against the other driver. The passenger discharged the firm of attorneys she had originally engaged and employed another lawyer who filed suit against both drivers in behalf of the passenger and her husband and recovered a compromise judgment of $3000 against the other driver and $3000 against her driver, and $4000 against both drivers were awarded in favor of the passenger’s husband. The firm of attorneys originally employed then intervened in the case asserting that their client had no lawful right to discharge them as attorneys and prayed for a lien on the proceeds of recovery for their 50 percent contractual attorneys fee.
The appellate court found that the firm of attorneys were negligent in their handling of the passenger’s case by not suing her driver and breached their duty to properly advise their client of her rights against her driver. The court denied attorney’s fees to the firm of attorneys.
The Court of Appeals stated:
The negligence of petitioner (the firm of attorneys) and breach of their duty to properly advise and represent Mrs. Holcomb was a breach of their contract of employment and a bar to their right to recover the attorney’s fees sued for. P. 244.
In New Jersey, the Supreme Court issued a directive:
The Supreme Court is of the view, because of the conflict of interest inherent in the situation, that an attorney should not represent both the driver of a car and his passenger in an action against the driver of another car, unless there is a legal bar to the passenger suing his own driver, as, for example, where they are husband and wife, unemancipated child and parent, or employees of the same employer and the accident occurred in the course of their employment. Where an attorney does represent both a driver and his passenger and no such legal bar exists, if a cross-claim or counter-claim is made by the other driver, a conflict of interest arises and the Supreme Court has advised the Assignment Judges that the attorney should not be permitted to continue to represent either the driver or his passenger.” 91 N.J.L.J. 68 (Feb. 1, 1968). And see Weinberg v. Underwood, 101 N.J.Super. 448, 244 A.2d 538 at 540 (1968).
In the present case, a conflict surely existed because Pomeroy and Teague had cross-claimed against the two girls for damages, for personal injuries and damages to the truck.
If Joan had been represented by separate counsel, without any conflict of interest and had included her sister Patricia as a party defendant in her suit in the state court against Teague, Pomeroy and Nobles, the jury could not very well have returned a verdict against Patricia in favor of Teague and Pomeroy based on Patricia’s negligence without also returning a verdict in favor of Joan against Patricia. As a matter of fact, it would have changed the complexion of the entire case and could have resulted in a verdict against both truck drivers who were blocking both lanes of the highway.
*941The district judge in a pretrial conference, ruled that in a malpractice action against an attorney, a claim for conflict of interest could not be joined in the malpractice claims of negligence against the attorney in his preparation, conduct of the trial and appeal of the case. The district judge stated:
In any case, it appeared that this claim based on the alleged conflict of interest on the part of defendant Tomlin should not be tried with the claims of negligence in losing the lawsuits and therefore it was by pretrial order, not dealt with at the trial.
This ruling was clearly erroneous. In the unanimous panel decision we stated:
The District Court cites no authority for such a proposition. This was a legal malpractice case. If conflict of interest should not be dealt with in a malpractice case, where should it be dealt with? Malpractice is defined in Webster’s New World Dictionary of the American Language, College Edition, with respect to persons other than physicians, as:
2. Misconduct or improper practice in any professional or official position. Negligence of an attorney in the investigation, trial, and appeal of his client’s case is certainly improper practice in his professional capacity; it is malpractice. It is also malpractice for an attorney to represent parties with conflicting interests, without his disclosing all facts to his clients and obtaining their consent. 593 F.2d 39.
We further stated:
When the District Judge, in a pretrial conference, ruled that conflict of interest could not be considered in a legal malpractice ease where negligence was also alleged, the plaintiffs petitioned our Court for a writ of mandamus and prohibition to obtain relief from this error. In an order entered July 8, 1976, we held that no appeal lies from an interlocutory order except by leave of court, and that mandamus is an extraordinary remedy and can not be used as a substitute for an interlocutory appeal. Woodruff v. Honorable Bailey Brown, No. 76-1892, Court of Appeals, 6th Cir.
During the trial in the District Court plaintiffs again raised the conflict of interest issue and proffered proof which the District Court rejected, and declined to submit the issue to the jury, and finally dismissed the complaint when it granted judgment n. o. v.
In this direct appeal we now have jurisdiction to hear and to determine the issue of conflict of interest.
In our opinion it was prejudicial error for the District Court at its pretrial conference to separate and remove the issue of conflict of interest from other issues of malpractice, and to deny the admission of relevant evidence with respect thereto at the trial, and to decline to submit the issue to the jury for determination. If the issue of conflict of interest has been submitted to the jury it could have produced a different result. 593 F.2d 40-41
The majority opinion agrees that it was prejudicial error for the district judge to separate from and decline to try the issues of conflict of interest with the other malpractice issues in the case.
The Erroneous Instruction On Last Clear Chance
The state trial judge in the second trial ruled that there was sufficient evidence of last clear chance to submit that important issue to the jury but unfortunately he gave a clearly erroneous instruction which operated to defeat the plaintiffs’ case because he stated that “the plaintiffs would be entitled to recover, provided they are not guilty of contributory negligence that proximately caused the accident.”
Where the doctrine of last clear chance is applicable the plaintiffs are in a position of peril. There negligence had ceased. The defendants saw the plaintiffs in a position of peril and in the exercise of ordinary care could have avoided the accident but the defendants neglected to exercise such ordinary care. Contributory negligence of the plaintiffs was no longer an issue in the case and the court should have so instructed the jury.
*942Tomlin, as an insurance lawyer engaged in the defense of personal injury cases must certainly be presumed to know the Tennessee law on the issue of last clear chance, yet he made no objection to the erroneous instruction or request to the state trial judge to change the instruction to conform to Tennessee law. Nor did he assign the erroneous instruction on last clear chance as error in the motion for a new trial which he filed.
In our panel decision we stated:
This instruction was clearly erroneous. Under the doctrine of last clear chance plaintiff’s contributory negligence had ceased. It was no longer a proximate cause. The defendant saw the plaintiff in a position of peril in sufficient time that he could have averted the collision had he exercised ordinary care.
The instruction of the trial court defeated the entire purpose of the doctrine. It conflicted with a decision of the Supreme Court of Tennessee in Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It also conflicted with our decision applying Tennessee law in Smith v. Beattie, 346 F.2d 139 (6th Cir. 1965). It is argued that the erroneous instruction is supported by an appellate decision in Smith v. Craig, 484 S.W.2d 549 (Ct. App.Tenn., cert. denied August 7, 1972). The Supreme Court of Tennessee repudiated Smith v. Craig, supra, in Street v. Calvert, 541 S.W.2d 576 (Tenn.1976).
The trial judge, in giving the erroneous instruction, was bound by the decision of the Supreme Court of Tennessee in Vaughn v. City of Alcoa, supra, rather than by an erroneous decision of an inferior appellate court.
Tomlin did not ever object to the erroneous instruction in the state court trial, nor request the court to change it. He did not assert it as error in a motion for a new trial filed in the state court, nor did he assign it as error in the state court of appeals. 593 F.2d 41.
Tomlin’s partner prepared the appellate brief. The partner did not assign as error the erroneous t instruction on last clear chance because Tomlin had not included it in his motion for a new trial. Had it been assigned as error the state court of appeals would have had an opportunity to rule on the issue. If the state appellate court had decided against Tomlin on the issues, Tomlin could have petitioned the Supreme Court of Tennessee for certiorari where the rule announced in Street v. Calvert, 541 S.W.2d 576 (1976) would have controlled and a new trial for both Patricia and Joan would have resulted.
Failure To Call Witnesses
I agree with the majority opinion. I would, however, add to the majority opinion failure of Tomlin to call a reconstruction expert; failure to interview or take the deposition of Col. Dawson, a state police officer who was defendant’s expert witness. In my opinion, Tomlin’s excuse that it would be unethical is without legal support.
In the malpractice trial, Tomlin called as expert witnesses two judges of the state trial courts, one state Court of Appeals judge, and two attorneys to help him out. A state judge had participated in the trials and the appellate judge had written the opinion for the Court of Appeals. Tomlin thus recognized the value of the expert testimony in defending himself and he should have used expert testimony for the benefit of his minor clients in the trials in the state court.
It is obvious that the cases of the two girls were very poorly tried by Tomlin in the state court.
Negligence in Conducting Appeal
In addition to Tomlin’s failure to appeal the issue the erroneous instruction on last clear chance, Tomlin and his law firm made erroneous and damaging concessions against the interest of their clients which operated to prevent Tomlin from petitioning the Supreme Court of Tennessee for certiorari.
These admissions as stated by the Court of Appeals were:
In short, the fact is that there is material evidence in this record from which the jury could have concluded that Patricia *943Woodruff was guilty of negligence. This fact is conceded in appellants’ brief and it is therein admitted that neither of the plaintiffs in the original cases of Patricia Woodruff vs. Nobles, Pomeroy and Teague, and in Charles Woodruff vs. the same defendants can now prevail. [App. 162—63]
If Tomlin and his law firm had appealed to the state court of appeals the issue concerning the erroneous instruction on last clear chance, a new trial would have been granted either by the state court of appeals or by the Supreme Court of Tennessee to both Patricia and Joan. Street v. Calvert, supra.
Furthermore, since it was prejudicial error to eliminate the issue of conflict of interest, the entire case should be remanded for retrial as the majority has held.
Failure To Bring To The Attention Of The Trial Court Applicable Tennessee Statutes Relative To Rules Of The Road
I agree with the majority opinion on this issue.
Failure To Attempt To Obtain Change Of Venue
I disagree with the majority opinion on this issue. After the first trial in the state court resulted in a mistrial due to a “hung” jury, one of the jurors advised Mr. Wood-ruff that he could not get a fair trial in Chester County. Woodruff reported this to Tomlin who gave him incorrect advice. Tomlin could have dismissed the plaintiffs’ cases in the state court without prejudice and refiled in the federal court.
An incident took place in the second trial in the state court which reveals the wisdom of the advice given by the juror to Mr. Woodruff, namely, a claim of tampering in the second state court trial with a juror by the defendant Nobles who offered to permit the juror to use his (Nobles) farm for coon hunting.
Conclusion
The two girls have been subjected to two trials of their lawsuits in the state circuit courts and one appeal to the state court of appeals. In the federal court their malpractice suit was erroneously dismissed by the district judge on the ground it was barred by the state statute of limitations. We reversed and remanded for trial. Woodruff v. Tomlin, 511 F.2d 1019 (6th Cir. 1975). On remand the district judge erroneously held that conflict of interest claim against Tomlin could not be joined with other grounds of malpractice such as negligence. Woodruff petitioned this court for a writ of mandamus which we dismissed on the ground that no appeal could be taken from the pretrial order as it was an interlocutory order; that mandamus was an extraordinary remedy and could not be used as a substitute for appeal. Woodruff v. Honorable Bailey Brown, No. 76-1892, Sixth Circuit Court of Appeals.
As before pointed out, the plaintiffs in the district court were denied the use of a wealth of relevant and competent evidence tending to prove conflicts of interest and negligence of Tomlin. Evep without such evidence, the jury disagreed and the district judge then granted judgment n. o. v. in favor of Tomlin erroneously as is held in the majority opinion. If the erroneously excluded evidence had been admitted, an entirely different result could have been obtained.
It is a travesty that these young girls horribly injured in 1968 by reason of the negligence of truckers impeding traffic on the public highways have not obtained justice. Their failure to obtain justice, as has been pointed out, is due to the improper handling of their cases by their lawyers and a jury should now be permitted to decide the issues of fact with all the evidence admitted which was previously erroneously excluded.