Can a lawyer represent both the employer and the workers' compensation claimant in a settlement without telling the claimant?

Plain-English summary

A member asked about a lawyer representing both the employer and a workers' compensation claimant so that the claimant would be represented in a proceeding for a washout settlement under Florida Statutes section 440.20(10) (1961), without advising the claimant and where the claimant neither agreed to nor knew of the existence or identity of the counsel selected for that purpose.

The committee considered such an action to be a very serious violation of the Canons of Ethics, particularly Canon 6 concerning adverse interest, with possible violations of Canons 9, 32, and 35. It noted that in ABA Opinion 245 it was held improper for a plaintiff's lawyer in a divorce proceeding to even recommend local counsel for the defendant.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 9, 32, and 35 of the Canons of Professional Ethics; representing clients with directly adverse interests is now addressed by Rule 4-1.7 (conflict of interest, current clients) of the Rules Regulating The Florida Bar (Model Rule 1.7). Subsequent rule amendments or later opinions may have changed the analysis, and the cited statute (F.S. 440.20(10) (1961)) has since been amended. Treat this page as historical context, not current guidance.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: Can one lawyer handle both the employer's and the claimant's side of a comp settlement?

A: Not on these facts. The committee called it a very serious violation of the Canons for a lawyer to represent both the employer and the claimant in a washout settlement where the claimant did not know of or consent to the representation.

Q: Was the lack of the claimant's consent central to the conclusion?

A: Yes. The committee stressed that the claimant had not agreed to and had no knowledge of the existence or identity of the counsel selected to represent him in the washout proceeding.

Q: What did ABA Opinion 245 add?

A: The committee cited ABA Opinion 245 for the proposition that it was improper for a plaintiff's lawyer in a divorce proceeding even to recommend local counsel for the defendant, reinforcing the conflict concern.

Background and rules framework

The opinion applied former Canons 6 (adverse influences and conflicting interests), 9, 32, and 35 of the Canons of Professional Ethics. Representing one client whose interests are directly adverse to another is now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). The opinion arose under the workers' compensation washout settlement provision then codified at Florida Statutes section 440.20(10) (1961).

Citations and references

Rules of Professional Conduct:

• Canons 6, 9, 32, 35 [Canons of Professional Ethics; see current Rule 4-1.7]

Statutes:

• F.S. 440.20(10) (1961) (workers' compensation washout settlements)

Other opinions cited:

• ABA Formal Opinion 245: improper for a plaintiff's divorce lawyer to recommend local counsel for the defendant

See also

• FL Bar Ethics Op. 72-7: Switching Sides After Joint Advice
• FL Bar Ethics Op. 69-2: Representing Developer and HOA

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-63/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-63-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-63
April 12, 1963
Advisory ethics opinions are not binding.
It is improper for a lawyer to represent both an employer and a workmen's compensation claimant in a proceeding for a "washout" settlement without the claimant's knowledge of or consent to the representation of him.
Canons: 6, 9, 32, 35
Opinion: ABA 245
Statute: F.S. 440.20(10)
Chairman Holcomb stated the opinion of the committee:
In response to an inquiry from a member of The Florida Bar to the Professional Ethics Committee concerning the propriety of an attorney, [representing] both employer and workmen's compensation claimant in order that the claimant be represented in a proceeding for a "wash-out" settlement, under FS 440.20(10) (1961), without advising the claimant thereof and where the claimant has not agreed to and has no knowledge of the existence or identity of the counsel selected for that purpose, we desire to advise you as follows:
We consider such an action to be a very serious violation of the Canons of Ethics, particularly Canon 6 concerning adverse interest, with possible violations of Canons 9, 32, and 35. In ABA Opinion 245, it was held improper for plaintiff's lawyer in a divorce proceeding to even recommend local counsel for the defendant.