Can a lawyer defend someone in a criminal case while suing that same person in an unrelated civil case, if everyone consents?

Plain-English summary

The inquirer represented a minor in a guest-passenger case against the minor driver of the car in which she was riding when an accident occurred. He was then asked to defend that same driver against unrelated criminal charges of narcotics possession. Both minors and their parents knew of the proposed dual representation and had no objection to his proceeding with both the civil guest action and the criminal defense, which were otherwise factually unrelated. He asked whether, with consent given, any other impropriety remained.

The committee concluded that the dual representation should not be countenanced, identifying manifest dangers in the background. For example, in the civil guest action it could become important to show that the defendant was a known, suspected, or even convicted possessor of narcotics, which might require counsel to discredit his own client. The committee also noted that the insurance carrier providing the defense in the guest action would be seriously prejudiced by the continual interchange of communications between the civil defendant and his criminal defense counsel. On those facts, it concluded the inquirer should not undertake the criminal representation.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. (The opinion carries a 68-series number under the bar's numbering, but its printed date is January 15, 1969.) It applied the former Canon 6 on conflicting interests. Concurrent conflicts of interest, and the limits of client consent, are now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance.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 represent a client in one case while opposing that same client in another?

A: Under this opinion, not on these facts, even with consent. The committee found the dual representation should not be countenanced given the manifest dangers it identified.

Q: Why was consent from the parties not enough?

A: The committee pointed to concrete risks: the civil case might require counsel to discredit his own client over the narcotics issue, and the defense insurer would be prejudiced by the flow of communications between the civil defendant and his criminal counsel.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests, to a lawyer who would simultaneously sue and defend the same person in separate matters. Concurrent conflicts and the limits of client consent are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Code of Professional Responsibility; conflict duties now in Rule 4-1.7]

See also

• FL Bar Ethics Op. 68-57: Public Defender and Prosecutor
• FL Bar Ethics Op. 69-2: Representing Developer and HOA

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-53/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-53-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-53
January 15, 1969
Advisory ethics opinions are not binding.
It would not be proper for an attorney to represent a criminal defendant while simultaneously representing a personal injury plaintiff bringing an unrelated civil suit against the same defendant, even if both clients consent.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
While representing a minor in a guest passenger case against the minor driver of a vehicle in which she was riding at the time of an automobile accident, the inquirer was asked to defend the driver of the automobile against criminal charges of possession of narcotics. Both of the minors involved and their parents are familiar with the proposed dual representation and have no objections to the inquirer proceeding both with the filing of the civil guest action and the defense of the criminal charges, which are apparently otherwise totally factually unrelated. We are asked as to whether consent having been given by the parties involved, there is any other impropriety.
It occurs to us that the nature of the dual representation is such, in this particular instance, that it should not be countenanced by this Committee. Manifest dangers lurk in the background. For example, in the course of the trial of the civil guest action, it conceivably could become important to demonstrate that the defendant was a known or suspected possessor of narcotics (or possibly by that time, a convicted possessor), which might require counsel to discredit his own client. It also is obvious that the insurance carrier, which we are told will provide the defense in the guest action, would be seriously prejudiced by the continual interchange of communications between the civil defendant and his criminal defense counsel.
Under all the circumstances, therefore, we do not think that the inquirer should undertake the criminal representation.