After defending the car owner at the insurer's request, can the same lawyer defend the driver in a later suit the owner brings over the same accident?

Plain-English summary

Mrs. Owner's car, driven by Mr. Driver, was in an accident in which Mr. Passenger was hurt. Passenger sued Owner under the guest statute, alleging Driver's gross negligence; the lawyer, retained by Owner's liability carrier, won a not-guilty verdict for Owner. Owner then sued Driver for her own injuries from the same accident, alleging simple negligence. Because the policy made a permissive driver an additional insured, the carrier believed it had to defend Driver and asked the same lawyer to do so. Owner's new attorney objected, citing the lawyer's prior representation of Owner. The lawyer would again be arguing Driver was not negligent, though the degree of negligence at issue was lower in the second suit.

The committee was unanimous that the firm should not undertake the second representation. It recognized that no wrongdoing or breach of confidence might actually result, but believed that public confidence in the bar would not be served by a shift of sides in litigation growing out of the same accident. It found no circumstances compelling a different resolution of the doubt and concluded there was too much possibility of misunderstanding.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on adverse and conflicting interests. Conflicts of this kind are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (concurrent conflicts) and Rule 4-1.9 (duties to former clients); the Model Rule analogues are Rules 1.7 and 1.9. 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 Treat this page as historical context, not current guidance.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 take the second defense because the insurer asked and the policy required a defense?

A: No. The committee was unanimous that the firm should not undertake the second representation, despite the carrier's request, because of the shift of sides in litigation from the same accident.

Q: Did it matter that no actual breach of confidence might occur?

A: The committee recognized that possibility but still advised against the representation, reasoning that public confidence in the bar would not be served by the shift of sides and that there was too much possibility of misunderstanding.

Background and rules framework

The opinion applied the former Canon 6 on adverse and conflicting interests. The concern is now divided between Rule 4-1.7 of the Rules Regulating The Florida Bar (concurrent conflicts) and Rule 4-1.9 (former clients); the Model Rule analogues are Rules 1.7 and 1.9. The committee's reasoning turned on the appearance created by representing first the owner and then the driver in successive suits arising from a single accident.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7 and 4-1.9]

See also

• FL Bar Ethics Op. 65-70: Excess Judgment and Insurer-Retained Counsel
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-56/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-56.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-56
September 28, 1965
Advisory ethics opinions are not binding.
A lawyer who, at the request of an insurance company, defended the automobile owner in litigation arising from an accident should not thereafter defend the driver in a separate suit brought by the owner and arising out of the same accident, even when requested to do so by the same insurance company.
Canon: 6
Chairman Kittleson stated the opinion of the committee:
Mrs. Owner and Mr. Passenger were riding in Mrs. Owner's automobile which was operated by Mr. Driver, when the automobile was involved in an accident. Mr. Passenger sued Mrs. Owner to recover for his personal injuries, basing the suit upon Mr. Driver's alleged grossly negligent driving. Lawyer, at the request of Mrs. Owner's liability insurance carrier, successfully defended the suit, which resulted in a not guilty verdict in favor of Mrs. Owner. The Florida guest statute was, of course, pertinent, and the jury was instructed to find for Mrs. Owner unless Mr. Driver had been guilty of gross negligence. Mrs. Owner was the only defendant; Mr. Driver was not a defendant. Mrs. Owner has now filed suit against Mr. Driver to recover for her injuries arising from the same accident, alleging only simple negligence against the defendant. The insurance carrier believes that it is obligated to defend Mr. Driver, by virtue of Mrs. Owner's insurance policy, because under the policy a person driving the vehicle with the permission of the owner (named insured) is an additional insured. The insurance carrier has now requested Lawyer to defend Mr. Driver in the suit brought by Mrs. Owner. Mrs. Owner, in this suit, is represented by another attorney, who objects to Lawyer's participation; the objection is based upon the fact that Lawyer had previously represented Mrs. Owner in the other suit. It may be observed that Lawyer is being called upon to take the same position in the second suit that he did in the first suit, viz., that Mr. Driver was not guilty of negligent driving; the degree of negligence in issue is, however, less in the second case than it was in the first.
The Committee is unanimous in its advice that the firm should not undertake the second representation. The Committee recognizes the possibility that no wrongdoing or breach of confidence may actually result from the second representation, but the Committee believes that public confidence in the bar and in the legal profession would not be fostered by the shift of sides in litigation growing out of the same accident. No circumstances seem to exist that would compel resolving the doubt other than against the shift of sides. There is too much possibility of misunderstanding.