Can a lawyer keep representing a corporation in civil collection litigation after its president is indicted for related conduct?

Plain-English summary

A lawyer represented a corporation in civil litigation to collect sums due under contracts for services rendered in helping individuals reduce ad valorem taxes. The corporation's president and principal officer was indicted by a county grand jury, apparently over crimes arising from services rendered under similar contracts. The lawyer did not represent the president on the indictment and asked whether he could ethically proceed with the pending civil collection matters.

The committee said that, in the absence of additional facts, it could not give a definitive opinion. It observed that an attorney may ethically protect a client's legal rights without regard to criminal liability that might arise in other matters, and need not treat the existence of charges as the equivalent of guilt. Conversely, the committee stated, a lawyer must never knowingly promote or, in litigation, represent a client in asserting any fraudulent or illegal scheme or collecting its proceeds.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 15, 16, and 41 on a lawyer's duties to the client and the limits on assisting wrongdoing. Representation of an organization is now addressed by Rule 4-1.13, and the bar on assisting crime or fraud by Rule 4-1.2. Treat this page as historical context, not current guidance.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 a lawyer keep handling a company's lawsuits after an officer is criminally charged?

A: Under this opinion, yes in principle. The committee said a lawyer may protect the client's legal rights without regard to criminal liability arising in other matters and need not equate charges with guilt, while cautioning that more facts would be needed for a definitive answer.

Q: What is the limit the committee drew?

A: The committee said a lawyer must never knowingly promote, or in litigation represent a client in asserting, a fraudulent or illegal scheme, or collect the proceeds of one.

Background and rules framework

The opinion applied the former Canons 15, 16, and 41, which addressed a lawyer's duty to the client and the prohibition on aiding fraud or illegal conduct. Representation of an organization as the client is now addressed by Rule 4-1.13 of the Rules Regulating The Florida Bar, and the prohibition on counseling or assisting crime or fraud by Rule 4-1.2; the Model Rule analogues are Rules 1.13 and 1.2.

Citations and references

Rules of Professional Conduct:

• Canons 15, 16, 41 [Canons of Professional Ethics; now Rules 4-1.13, 4-1.2]

See also

• FL Bar Ethics Op. 72-17: Former Partner Conflict
• FL Bar Ethics Op. 68-16: Suing a Former Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-14/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-14-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-14
May 7, 1968
Advisory ethics opinions are not binding.
An attorney may represent a corporate client in litigation to collect sums due under certain contracts although the corporation's president has been indicted for his activities related to the same or similar contracts, provided that the representation does not involve knowing assistance in a fraudulent or illegal scheme.
Canons: 15, 16, 41
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises as follows:
I am presently involved in civil matters of litigation as attorney for, and on behalf of, a corporation which I will designate for use in this letter as ABC Corporation. The President and principal officer is Mr. ABC. The litigation involves the collection of sums due under contracts signed by individuals for services rendered in assisting them in saving monies relative to ad valorem taxes. During the past few years, I have represented the corporation in the collection of funds under this type of contract.
The question has been brought to me as to what my position is under the following circumstances:
A. ABC, Individually, has had an indictment returned against him by the _____ County Grand Jury.
B. The matters involved in the indictment, while unknown to me as to particularities, apparently seek to charge ABC with a crime or crimes emanating from services rendered under similar type contracts.
C. I, as attorney, while not representing ABC in any matters whatsoever involving the indictment, nevertheless am representing the corporation in the civil aspects in collecting monies due ABC corporation under similar type contracts.
D. There are several civil matters now pending.
Upon the foregoing facts the following question is asked:
If I have undertaken to handle civil litigation relative to the collection of funds due under contracts, and I learn that the principal officer of my corporate client has been indicted on a criminal charge involving perhaps the same, or at least similar type contracts, wherein his activities relative to the performance of services for which the funds to be collected were charged, can I proceed ethically with the civil litigation pending the disposition of the indictment and information thereunder.
In the absence of additional facts we are unable to furnish a definitive opinion. Certainly an attorney representing a client may ethically protect the legal rights of the client without regard to criminal liability of the client which might arise in other matters, nor in the same light must the attorney necessarily conclude that the existence of charges concerning a particular matter is the equivalent of guilt. Conversely, a lawyer must never knowingly promote or in litigation represent a client in asserting any fraudulent or illegal scheme or collecting the proceeds thereof.