Can a lawyer sue a party represented by another lawyer who is listed 'of counsel' on the suing lawyer's letterhead?

Plain-English summary

A member asked about the propriety of representing the Citizens Bank as plaintiff against defendants represented by Mr. A, who appeared on the member's firm letterhead as "of counsel." The committee's consensus was that such representation is improper, with the possible exception that if both parties are fully advised of the representation and consent, it might be proper.

The committee relied on Drinker, Legal Ethics, at pages 103 and 106, on the duty to disclose at the time of retainer and not to represent conflicting interests except by express consent of all concerned after full disclosure, and on the principle that the injunction against representing conflicting interests applies equally to law partners representing clients with conflicting interests. It noted some question whether the mere appearance of one attorney as "of counsel" on the other's letterhead conclusively proves they were associated at the time, observing that if the relationship had changed so they were no longer in fact associated, there would be no objection to their appearing on opposite sides; but if they were actually associated in the practice of law, it was improper. The committee also pointed to the possible violation of Canon 34 on the division of fees, Canon 32, and Canon 6, concluding that the contemplated representation while Mr. A appeared "of counsel" would be improper.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 32, and 34 of the Canons of Professional Ethics; conflicts of interest and their imputation among associated lawyers are now addressed by Rules 4-1.7 and 4-1.10 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.10). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer sue a party represented by his own "of counsel" attorney?

A: No, where the two were actually associated. The committee found it improper for the lawyer and his "of counsel" attorney to appear on opposite sides of the same case.

Q: Could disclosure and consent cure the problem?

A: The committee said it might be proper if both parties were fully advised of the representation and consented, or if the attorneys' relationship had been severed so they were no longer in fact associated at the time of retainer.

Background and rules framework

The opinion applied former Canons 6, 32, and 34 of the Canons of Professional Ethics, treating the "of counsel" relationship as one that imputes a conflict between associated lawyers. Conflicts of interest and their imputation are now addressed by Rules 4-1.7 and 4-1.10 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.10). The committee relied on Drinker, Legal Ethics, at pages 103 and 106.

Citations and references

Rules of Professional Conduct:

• Canons 6, 32, 34 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.10]

Other authorities:

• Drinker, Legal Ethics, pp. 103, 106

See also

• FL Bar Ethics Op. 62-5: A Partner Practicing Before an Appointed Municipal Judge

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-20/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-20-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 61-20
October 16, 1961
Advisory ethics opinions are not binding.
It is improper for an attorney to institute an action against a client represented by another who is listed "of counsel" on the letterhead of the first attorney. Full disclosure and consent, or severance of the relationship between the attorneys at the time of retainer, may remove the ethical impropriety.
Canons: 6, 32, 34
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar inquires concerning the propriety of his representing the Citizens Bank of ____ County as plaintiff against certain defendants represented by Mr. A, who appears on the firm letterhead as "of counsel." The consensus of opinion is that such representation is improper, with the possible exception that if both parties are fully advised of such representation and consent thereto it might be proper.
Drinker on Legal Ethics, page 103, under "Duty Not to Represent Conflicting Interests," recites that "It is the duty of a lawyer 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," and "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts." At page 106, Drinker says: "The injunction not to represent conflicting interests applies equally to law partners representing different clients who have interests conflicting with one another. . . ."
There is some question as to whether the mere fact that one attorney uses the letterhead on which the other appears as "Of Counsel" is conclusive proof that the two were associated at the time the letter was written. If the relationship had changed so that they were no longer in fact associated, there would of course be no objection to both appearing on opposite sides of the case; but if they are actually associated in the practice of law, we deem it improper for them to appear on opposite sides of the case.
We call attention also to the possible violation of Canon 34 relating to a division of fees, to Canon 32 requiring a lawyer to honor his profession in the best interests of his clients, to Canon 6 making it unprofessional to represent conflicting interests. As to Canon 6, Mr. Drinker says: "Attorneys. . . should not voluntarily put themselves into positions where the conditions of their compensation may interfere with the full discharge of their duty to their clients." (Page 106.)
Under the circumstances, we believe that representation by Mr. A of the defendants in the case in which the inquirer is representing the plaintiffs while Mr. A appears on the letterhead as "Of Counsel" would be improper.