dissenting.
The initial letter of employment from Edward to Ronald dated May 19, 1975, said:
For your file is enclosed a copy of the initial pleading in the above-refernced [sic] matter. / do not expect any further activity in the case, but will keep you advised.
As we discussed, the arrangement on this matter at this time will be the usual arrangement with Chaikin & Karp for your service as co-counsel without active participation in the case. [Emphasis added.]
Edward’s anticipation about further activities was erroneous. When the motions to dismiss for misjoinder were filed, Ronald went into action.
The majority opinion says: “The most important duty assigned to Ronald was to research the misjoinder problem and take whatever corrective action was available.” Ronald then undertook to research the legal issue, prepared a motion to amend the original motion for judgment so that separate causes of action could be severed, and argued the matter without Edward before the trial court on January 7, 1976.
The trial court did not agree with the position of Ronald, and by letter opinion dated January 20, 1976, and addressed only to Ronald as plaintiffs’ counsel, the court advised Ronald of its rul*133ing. This ruling was formalized by the order entered June 1, 1976, over four months after the letter opinion. Contained within that order was the following statement: "[AJnd by agreement of the parties, all plaintiffs, with exception of Theresa Teran, are hereby dismissed as parties plaintiff to this action.” (Emphasis added.) Edward endorsed the order, but Ronald did not. The statement as to the agreement of parties is false.
Edward died in August 1976, and thereafter Ronald alone, on October 15, 1976, prepared answers to interrogatories for Theresa Teran and delivered them to opposing counsel. On October 26, 1976, Ronald alone prepared and submitted interrogatories to each defendant and was personally present with the foreign attorney, who succeeded Edward, for the discovery deposition of Teran on November 16, 1976. I do not think it is fair to the clients to allow Ronald to escape liability for this tragic situation by shifting the blame to his co-counsel. He participated actively in the case and received one-half of the fee. Ronald contends that he is absolved of liability because he wanted to appeal and was overruled by Edward. I do not think he can evade responsibility so easily.
The vital issues were the misjoinder ruling and its consequences. If Ronald and Edward disagreed as to an appeal from the misjoinder ruling, then the disagreement should have been submitted to the clients for a decision. If only one plaintiff was going to be permitted to continue, and three were going to be thrown out of the litigation, that election could not be made without joint consultation of the four plaintiffs and the two attorneys.
The proper standard is set forth in Rule 6:II:EC 5-12 which states:
Inability of co-counsel to agree on a matter vital to the representation of their client requires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.
The failure to follow this procedure in the instant case was flagrant and inexcusable and could constitute actionable negligence. To that extent I dissent from the majority conclusion.