After a lawyer's former firm represented one party in a multi-car accident, can the lawyer represent another party whose claim may be against the firm's former client?

Plain-English summary

A three-vehicle rear-end accident (vehicle A struck B, pushing B into C) produced the inquiry. A firm the inquiring lawyer had been associated with represented the occupants of vehicle B in a claim against those responsible for vehicle A; the lawyer assisted on that claim. The firm later dissolved, and the lawyer had no further connection with the B claim, which was still pending. An occupant of vehicle C then asked the lawyer to represent her, and her interests might include a claim against vehicle B. The lawyer asked whether that representation was proper, and whether it would matter if investigation showed vehicle B had been stopped and merely pushed into C (which the inquirer assumed would mean no liability on B).

The committee concluded that Canon 6, governing conflicts of interest, controlled, and that the lawyer could not ethically represent the occupant of vehicle C except with the express consent of that client and of the former firm's clients after full disclosure. It added that the lawyer's own determination that there was no liability on the part of vehicle B would not be adequate to meet the Canon's criteria. Absent the informed consent the Canon required, the proposed representation would be improper.

Currency note

This opinion was issued in January 1967, 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 involving former clients are now governed by Rule 4-1.9 of the Rules Regulating The Florida Bar, and concurrent conflicts by Rule 4-1.7 (Model Rules 1.9 and 1.7). 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 Treat this page as historical context, not current guidance.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 vehicle C client without anyone's consent?

A: No. The committee said that under Canon 6 the lawyer could not undertake the representation except with the express consent of the new client and of the former firm's clients after full disclosure.

Q: Did it matter that the lawyer thought vehicle B had no liability?

A: The committee said a mere determination by the lawyer that there was no liability on those responsible for vehicle B would not be adequate to meet the criteria of the Canon; the consent requirement still applied.

Q: Did it matter that the lawyer's old firm had dissolved and he no longer handled the B claim?

A: The opinion treated the prior firm's representation of the vehicle B occupants as the source of the conflict and still required informed consent, even though the firm had dissolved and the inquirer no longer worked on that claim.

Background and rules framework

The opinion applied the former Canon 6, which addressed representing conflicting interests. That subject is now divided between Rule 4-1.9 of the Rules Regulating The Florida Bar (duties to former clients) and Rule 4-1.7 (concurrent conflicts); the Model Rule analogues are Rules 1.9 and 1.7. The conflict arose because the proposed new client's interests could run against a party the lawyer's former firm had represented in the same accident.

Citations and references

Rules of Professional Conduct:

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

See also

• FL Bar Ethics Op. 67-16: Former Client, New Matter
• FL Bar Ethics Op. 68-12: Switching Sides on Zoning
• FL Bar Ethics Op. 68-16: Suing a Former Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-77/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-77.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-77
January 31, 1967
Advisory ethics opinions are not binding.
A lawyer who represented one party to a three-vehicle accident may not then represent a second party to the accident, whose interests may include prosecution of a claim against the original client, in the absence of consent of both clients after full disclosure.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
A three-vehicle automobile accident gives rise to the present inquiry. For purposes of description we shall describe the vehicles from back to front of the accident as A, B, and C. The accident occurred when vehicle A struck vehicle B from the rear, pushing vehicle B forward into the rear of vehicle C.
The occupants of vehicle B retained a firm with which the inquirer was associated to prosecute a claim against the parties responsible for the operation of vehicle A. The inquirer assisted in the handling of this claim. Subsequently the firm handling this claim was dissolved and the inquirer has had no further connection with the handling of the claim on behalf of the occupants of vehicle B, which claim is apparently still pending.
The inquirer is now requested by an occupant of vehicle C to represent her interests in the matter. These interests may include the prosecution of a claim against vehicle B. We are asked as to the propriety of the representation of the occupant of vehicle C, with the additional request that we comment upon the propriety of this representation if an investigation revealed that vehicle B was in fact stopped at the time when the accident occurred and was merely pushed into vehicle C. Presumably the latter inquiry is premised upon the conclusion that in such instance there would be no liability on those responsible for the operation of vehicle B.
It is our opinion that Canon 6, regulating conflicts of interest, governs in this instance and that the inquirer may not ethically undertake to represent the occupant of vehicle C except with the express consent of that client and of the clients of his former firm coming after full disclosure of the circumstances. In our judgment a mere determination on his part that there was no liability on the part of those responsible for the operation of vehicle B would not be adequate to meet the criteria imposed by this Canon. Thus in the absence of the informed consent required by the Canon, the representation proposed would be improper.