Can an insurance company's lawyer draft the plaintiff's pleadings in a friendly suit settling a minor's claim, even with full disclosure?

Plain-English summary

The committee considered whether an insurance company's counsel may draw pleadings in friendly-suit matters, where minors' claims are settled and court approval is required, if certain disclosures are made to the plaintiff-claimant. The proposed disclosures included that the attorney is regularly employed by the insurer, that the insurer pays the drafting fees, that the attorney took no part in settlement negotiations, that the claimant elected not to retain counsel, that the petition discloses the employment relationship, that the attorney does not represent the claimants and gives no advice on the quality of the settlement, and that the pleadings are prepared for the sole benefit of the insurer.

The committee answered in the negative. First, it found the sixth disclosure, that the attorney does not represent the claimants, could not accurately apply, because once the attorney undertakes to draft a document for the benefit of the friendly-suited plaintiff, he does in fact represent the claimant. Second, having undertaken that representation, the question was whether he could carry it out, even with complete informed consent, under DR 5-105(C); the committee did not believe it would be "obvious," under the objective criteria, that informed consent overcomes both the conflict and the appearance of impropriety addressed by Canon 9.

Citing the reasoning of Opinion 76-2, the committee identified the compromising position of an attorney owing the claimant a duty to secure the highest possible settlement while owing the insurer a duty to have it pay as little as possible, and concluded it is not "obvious" that both clients can be adequately represented. The representation does not permit the attorney to avoid even the appearance of impropriety under DR 9-101. The committee declined the attorney's request to propose alternatives, as that is beyond its function.

Currency note

This opinion was issued in the late 1970s, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

The official PDF of this opinion does not carry a printed issuance date; the opinion number places it in the late 1970s.

Common questions

Q: Can an insurer's lawyer draft the plaintiff's friendly-suit pleadings if everything is disclosed?

A: The opinion concluded he may not, because drafting the document for the plaintiff's benefit makes the lawyer the claimant's representative, and disclosure does not cure the resulting conflict.

Q: Why isn't informed consent enough?

A: The opinion concluded it is not "obvious" under DR 5-105(C) that consent overcomes both the conflict and the appearance of impropriety, given the lawyer's opposing duties to the claimant and the insurer.

Q: Did the committee suggest a permissible alternative?

A: No. The opinion declined to propose alternatives, stating that doing so is beyond the committee's function.

Background and rules framework

The opinion interprets CPR DR 5-105(C), DR 9-101, and Canon 9. The conflict analysis corresponds to Model Rule 1.7 (Florida Rule 4-1.7) on concurrent conflicts of interest.

Citations and references

Rules of Professional Conduct:

• CPR DR 5-105(C); DR 9-101; Canon 9 (Model Rule 1.7)

Other opinions cited:

• Florida Ethics Opinion 76-2

See also

• FL Bar Ethics Op. 78-17: Insurer and Insured Contribution Conflict
• FL Bar Ethics Op. 97-1: Insurer Instructions on Summary Judgment
• FL Bar Ethics Op. 86-6: Representing a Physician and Insurer on Settlement

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-77-18/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-77-18-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 77-18
Advisory ethics opinions are not binding.
It is not permissible for an insurance company's attorney to draw pleadings for the plaintiffs in friendly suits in which the plaintiff minors' claims are settled subject to court approval.
CPR: DR 5-105(C), DR 9-101; Canon 9
Opinion: 76-2
Chairman Richman stated the opinion of the committee:
The inquiring attorney asks whether it is permissible for an insurance company counsel to draw pleadings in friendly suit matters where minors' claims are settled and court approval is required if certain criteria of disclosure are made to the plaintiff-claimant. The criteria include disclosure that (1) the attorney is regularly employed by the insurance company, (2) the insurance company pays the fees for the drafting of the pleadings, (3) the attorney took no part in the settlement negotiations, (4) the plaintiff-claimant elected not to retain counsel, (5) the petition submitted discloses the employment relationship of counsel and such information is included by the court in its finding of fact in the order for settlement, (6) that the attorney does not represent the claimants and has rendered no advice as to the quality of the settlement, and (7) a disclosure that the pleadings are prepared for the sole benefit of the insurance company and for the insurance company only.
It is the Committee's opinion that the inquiry must be answered in the negative for several reasons.
First, the Committee believes that the sixth item of disclosure, i.e., "that the attorney does not represent the claimants" cannot accurately be applied to the facts since once the attorney undertakes to draft a document for the benefit of the friendly-suited plaintiff, he does, in fact, represent the claimant.
Second, having undertaken such representation, the question is whether he can carry out such representation, even with complete informed consent, in light of DR 5-105(C). The Committee does not believe that under the objective criteria under the DR it will then be "obvious" that in such a multiple representation situation the informed consent will overcome both the conflict and the appearance of impropriety discussed in Canon 9.
For the reasons indicated in Opinion 76-2, i.e., the compromising position of the attorney in having a responsibility to the claimant to secure the highest possible settlement and at the same time having the responsibility to the insurance company to have it pay as little as possible, it further becomes less than "obvious" that there can be adequate proper representation of both clients under the circumstances. The representation undertaken simply does not permit the attorney to avoid even the "appearance of impropriety" as stated in DR 9-101.
Finally, the attorney asks that this Committee propose alternatives to the methods employed in such situations by insurance companies. The Committee respectfully declines to propose alternatives as that is beyond the function of the Committee.