After a firm jointly advised a car's driver and owner-passenger and appeared for the driver in traffic court, can another lawyer in the firm sue the driver on behalf of the owner-passenger?

Plain-English summary

Two occupants of a car involved in an intersection collision, the driver and the owner-passenger, jointly sought legal advice about their rights and liabilities from the same firm. A lawyer from that firm appeared for the driver at a traffic court hearing, where both the driver and the owner-passenger testified as defense witnesses; the driver was nonetheless found guilty. A member of the firm then asked whether the firm could represent the owner-passenger in a civil action against the driver, so long as the lawyer who had appeared in traffic court did not participate in bringing the action.

The committee adhered to its former opinions disapproving a shifting of positions, real or apparent, in litigation growing out of the same accident, citing Florida Opinions 65-56 and 68-53. It concluded that the proposed civil representation would be improper, and that the prohibition against the second retainer applied equally to all members or associates of the firm.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.7, 4-1.9, and 4-1.10 before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm sue the driver for the passenger if the original traffic-court lawyer sat the new case out?

A: Under this opinion, no. The committee said the prohibition against the second retainer applied equally to all members or associates of the firm, so screening the original lawyer was not enough.

Q: Why was the later representation treated as improper?

A: The opinion treated it as a forbidden shifting of positions, real or apparent, in litigation growing out of the same accident, consistent with the committee's prior opinions on that point.

Background and rules framework

The opinion addressed a firm switching positions in matters arising from the same accident after a joint consultation, and imputed the resulting disqualification to the whole firm. In current Florida practice the relevant duties are the conflict rule in Rule 4-1.7, the duty to former clients in Rule 4-1.9, and imputation within a firm in Rule 4-1.10; the Model Rule analogues are Rules 1.7, 1.9, and 1.10.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; no specific disciplinary rule cited

Other opinions cited:

• Florida Opinions 65-56, 68-53

See also

• FL Bar Ethics Op. 72-17: A Former Partner of the Hospital President
• FL Bar Ethics Op. 73-3: A Former Joint Client and a Later Divorce
• FL Bar Ethics Op. 72-50: Joint Representation in a Criminal Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-7-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-7
March 10, 1972
Advisory ethics opinions are not binding.
When a lawyer in a firm was consulted by both driver and owner-passenger concerning an auto accident and appeared for the driver in traffic court, where the driver was found guilty after both driver and owner-passenger testified, another member of the law firm may not subsequently represent the owner-passenger in a related civil action against the driver.
Opinions: 65-56; 68-53
Chairman Clarkson stated the opinion of the committee:
Two occupants of an automobile involved in an intersection collision, the driver and the owner-passenger, jointly sought legal advice as to their rights and liabilities arising from the accident. A lawyer from the firm which they consulted appeared for the driver at a traffic court hearing, where both the driver and the owner-passenger testified as defense witnesses, notwithstanding which the driver was found guilty.
A member of the firm now inquires whether the firm may represent the owner-passenger in a civil action against the driver so long as the attorney who appeared in traffic court does not participate in bringing the action.
The Committee adheres to former opinions wherein we have disapproved a shifting of positions, real or apparent, in litigation growing out of the same accident. Florida Opinions 65-56 and 68-53. The proposed civil representation would be improper. The inhibition against the second retainer applies equally to all members or associates of the firm.