(concurring).
This opinion, concurring only in the result reached by the majority, is respectfully presented.
At the outset it must be borne in mind that this suit is between two parties only, these being Joe Tilley and Employers Casualty Company. The attorney who was selected and employed by Employers Casualty Company and to whom reference will hereinafter be made, was not a party to this action. What is recited herein, therefore, has not been factually established against the attorney. What is recited herein has, however, been factually established aá between the two principals to this action and insofar as it involves the conduct of the attorney is pertinent because it is upon this that the instant case principally turns.
This court’s opinion recites that certain factual allegations are adequately supported by summary judgment proof. As pertinent here these facts are that Employers Casualty Company assumed the defense of Tilley and employed an attorney to represent him. Thereafter the attorney, while representing Tilley, took statements from Tilley’s employees knowing that they were contrary to Tilley’s position, briefed legal questions pertaining to the case for Employers Casualty contrary to Tilley’s position, interviewed persons to establish a defense against Tilley for Employers Casualty, and engaged himself in oral conversation and by letter with Employers Casualty in the development of a defense for it against Tilley. During all of this period of “representation” which lasted almost one and one-half years, at no time was Til-ley informed by the attorney (or by Employers Casualty) “that there was any con*562flict of interest; or that the attorney was acting for Employers and against Tilley
The .majority opinion states the controlling question as “whether the summary judgment proof establishes as a matter of law that Employers waived or is estopped from asserting its policy defense of late notice.” This question could and should be forcefully answered in the affirmative based solely on the consideration that the recited conduct, accomplished by the attorney for Employers Casualty, as a matter of public policy, constituted a waiver of the policy defense and that Employers Casualty is estopped as a matter of law from denying its responsibilities under the policy.
The majority’s second question is whether the non-waiver agreement permitted such adverse conduct by the attorney in his representation of Tilley. This question could and should be answered with even stronger forcefulness in the negative, again based upon the consideration of public policy which must find it untenable.
It is proper to hold, as the majority has, that an attorney’s actions, as in this situation, affect the rights of the parties to the lawsuit, i. e., Tilley has been advantaged by an estoppel against Employers. Yet we should not let our attention to the merits of the controversy between Tilley and Employers so absorb us that we fail to look to that to which this court should be particularly sensitive — and that which underlies the present case disposition — the ethical considerations involved in the attorney-client relationship made evident in the instant record.
This court’s Code of Professional Responsibility, enacted as late as December 21, 1971,1 compels our attention. These Canons were formulated to govern attorneys, they are directed to lawyers, they set the proscriptive limits for members of the legal profession. The fourth Canon speaks to the fiduciary relationship between a lawyer and his client and the principle that the confidence of a client must be held inviolate; the fifth recites that the lawyer’s professional judgment is to be used solely for the benefit of his client and that no conflicting interest shall dilute such loyalty-
If the representation from the record described by the opinion of the majority is to be considered as a representation of two or more clients, the ethical considerations enumerated under the Interests of Multiple Clients are controlling.
“EC S — 14. Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interest be conflicting, inconsistent, diverse, or otherwise discordant.
“EC 5-15. If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. . . .”
If it be contended that these acts occurred prior to the adoption of the present Code of Professional Responsibility, the previous Rules Governing the State Bar of Texas, Section 3, Article XIII, would be equally stringent.
*563“Canon 6. Adverse Influences and Conflicting Interests. It is the duty of a member at the time of retainer to disclose to the client 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 a full disclosure of the facts. Within the meaning of this rule, a member represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. . . .”
“Canon 34. Confidences of a Client.
The duty to preserve his client’s confidence outlasts the member’s employment, and extends as well to his employees; and neither of them should accept employment which involves the disclosure or use of these confidences, either for the private advantage of the member or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A member shall not continue employment when he discovers that this obligation prevents the performance of this full duty to his former or to his new client.
These two parties, Tilley and Employers Casualty, had differing interests and this was known to the attorney either at the outset or after only a very few days from the attorney’s employment. Even with such knowledge there was no withdrawal by the attorney; there was no information or explanation concerning the conflict given to Tilley. To the contrary, the record strongly suggests concealment of the conflict from Tilley for the purpose of ultimately promoting the interest and position of Employers Casualty over that of Tilley; by providing a defense for Employers Casualty whereby it would have no obligation to Tilley.
The representation provided by the attorney more appropriately should be construed as representation of a single client, Tilley. The majority opinion of this court recites that the policy in question provides that the attorney to represent the insured is to be selected, employed and paid by Employers Casualty but that such attorney is to be the attorney of record and legal representative of the insured (Tilley) and owes to him the same type of unqualified loyalty as if he had been originally employed by him. The “unqualified loyalty” of the attorney to his client (Tilley) tolerates no comparison against those factual recitals made in the majority opinion. Such conduct must be measured by the first of the ethical considerations enumerated under Canon 5 which relates to the lawyer’s duty, obligation and loyalty to his client.
“EC 5-1. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.”
The Ethical Considerations under Canon 5 make it clear that situations where the cost of legal services are borne by a third party are ethically proper only so long as control remains in the client and the responsibility of the lawyer is solely to the client.
This court’s majority opinion has concluded that the attorney’s actions, as in the present instance, affect the rights of the two parties to this action as against each other. The “guiding principles” should not be concepts which have not been considered or approved by the bench and bar of this state; the “guiding principles” should be this court’s Code of Professional Responsibility which speaks precisely *564and directly to the permissible actions of attorneys. This court should not be considering the ethical obligation, whatever it may be, which is required of a commercial enterprise to its customer; this court should be considering the fiduciary relationship inherent in the attorney-client relationship and the effect of its transgression upon the rights of the parties hereto.
. Code of Professional Responsibility (1971) following Article 320a-l, Texas Revised Civil Statutes Annotated.