Must an assistant city attorney withdraw from suing the city's insurers when an insurer impleads the city?

Plain-English summary

The inquiring attorney represented a widow and administratrix suing two insurance companies that had been consecutive group life and health carriers for a municipality. One insurer filed a third-party complaint seeking to hold the municipality liable to it if the insurer were held liable to the plaintiffs. The inquiring attorney was both a partner of the City Attorney and himself an Assistant City Attorney. The claim against the city was not entirely frivolous, as shown by the third-party complaint surviving a motion to dismiss.

The committee concluded there was an obvious conflict of interest and that the inquiring attorney and his partner should withdraw from the litigation, citing DR 5-105 and DR 4-101.

Currency note

This opinion was issued in 1977, 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 Treat this page as historical context, not current guidance.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 and 4-1.6 before relying on any specific requirement mentioned here.

Common questions

Q: Why did the assistant city attorney have to withdraw?

A: The opinion concluded an obvious conflict of interest arose once an insurer impleaded the city, because the attorney was an Assistant City Attorney and a partner of the City Attorney while also suing on behalf of a claimant whose suit could now expose the city to liability.

Q: Did the conflict extend to the attorney's partner?

A: Yes. The opinion concluded that the inquiring attorney and his partner should both withdraw from the litigation.

Background and rules framework

The opinion applied DR 5-105 (declining or withdrawing from employment that would involve a conflict of interest) and DR 4-101 (preservation of client confidences) of the former Code of Professional Responsibility. Those provisions correspond to Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.6 (confidentiality); the current Florida counterparts are Rules 4-1.7 and 4-1.6.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 5-105 (conflict of interest; withdrawal)
• CPR DR 4-101 (preservation of client confidences)

See also

• FL Bar Ethics Op. 76-24: Former Law Clerk Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-18/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-18-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-18
April 22, 1977
Advisory ethics opinions are not binding.
An assistant city attorney who also represents a private claimant against insurers of his employer city must withdraw from representation of the claimant when one of the insurers files a third party complaint against the city.
CPR: DR 4-101; DR 5-105
Vice Chairman Taylor stated the opinion of the committee:
An inquiring attorney represents a widow and administratrix of the estate of a former municipal employee suing two insurance companies as "consecutive group life and health carriers" for the municipality.
One insurer has filed a third party complaint seeking to hold the municipality liable to it should it be held liable to the plaintiffs.
The inquiring attorney is a partner of the City Attorney and is himself an Assistant City Attorney.
The claim that the city may be held liable is not entirely frivolous as demonstrated by the fact that the third party complaint has withstood a motion to dismiss.
We are asked what course the inquiring attorney should pursue.
It is obvious that there is a conflict of interest. The inquiring attorney and his partner should withdraw from the litigation. DR 5-105 and DR 4-101.