What must a lawyer do when two clients' interests become adverse and the court denies the motion to withdraw?

Plain-English summary

The inquiring attorney was staff counsel for an insurance company and was asked to prepare a coverage opinion. After receiving the file, the attorney had filed a notice of appearance for both the employer and the carrier. The Ethics Hotline advised that this was a conflict of interest under Rule 4-1.7, so the attorney moved to withdraw, but the court denied the motion based on the employer's objections, and the carrier then asked the attorney to prepare a coverage opinion letter.

The committee applied Rule 4-1.7, which bars representing a client when the representation will be directly adverse to another client absent the conditions in the rule, and concluded the attorney was representing two clients with adverse interests and should withdraw from both representations (Rule 4-1.16). It then addressed the denial: Rule 4-1.16(c) provides that when ordered to do so by a tribunal, a lawyer shall continue the representation notwithstanding good cause for terminating it.

The committee directed that the attorney must make certain the court fully understands that continued representation of both the carrier and the employer is a conflict of interest. If the court still refuses to permit withdrawal, the attorney should, if possible, encourage the clients to obtain new counsel and seek substitutions. If only one party obtains new counsel, Rule 4-1.16(c) would require the attorney to continue representing the other party despite the conflict.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: What must a lawyer do when two clients' interests become directly adverse?

A: Under this opinion, move to withdraw from both representations under Rules 4-1.7 and 4-1.16.

Q: What if the court denies the motion to withdraw?

A: Per the opinion, Rule 4-1.16(c) requires the lawyer to continue the representation when ordered to do so by a tribunal, even with good cause to terminate.

Q: What steps did the committee say to take after a denial?

A: The committee said the lawyer must ensure the court understands the conflict and should, if possible, encourage the clients to obtain new counsel and seek substitutions; if only one does, the lawyer must continue representing the other.

Background and rules framework

The opinion applied Rule 4-1.7 (conflicts of interest; Model Rule 1.7) and Rule 4-1.16, including subdivision (c) requiring continued representation when ordered by a tribunal (Model Rule 1.16).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Fla. Rule 4-1.7 (conflicts of interest)
• Model Rule 1.16 / Fla. Rule 4-1.16(c) (continued representation when ordered by a tribunal)

Cases:

• Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir. 1986), court-ordered continued representation

See also

• FL Bar Ethics Op. 97-1: Insurer Instructions on Summary Judgment
• FL Bar Ethics Op. 02-7: Insured Clients' Rights in Employment-Discrimination Defense
• FL Bar Ethics Op. 98-2: Set Fee in Insurance Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-93-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-93-8.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 93-8
May 15, 1994
Advisory ethics opinions are not binding.
An attorney representing two clients in a litigated matter must move to withdraw if the interests of the two clients become adverse. If the court denies the attorney's motion to withdraw, Rule 4-1.16(c) requires the attorney to continue the representation despite the conflict.
RPC: 4-1.7, 4-1.16
Case: Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir. 1986)

A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented by the inquiring attorney are as follows. The inquiring attorney is staff counsel for an insurance company and was asked to prepare a coverage opinion. Upon receipt of the file, however, the attorney filed a Notice of Appearance on behalf of both the employer and carrier. The inquiring attorney called the Ethics Hotline and was advised that this was a conflict of interest under Rule 4-1.7, and that, therefore, the attorney should withdraw. The attorney filed a Motion to Withdraw, which was denied by the court based on the employer's objections. The carrier has requested that the attorney prepare a coverage opinion letter in the matter.

Rule 4-1.7 of the Rules Regulating The Florida Bar is the governing ethical standard. This rule provides in pertinent part:
(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interest of another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and
(2) Each client consents after consultation.

As this rule is applied to the inquiring attorney's situation, it appears that he is representing two clients with adverse interests. Therefore, the attorney should withdraw from both representations. See Rule 4-1.16. If withdrawal is denied as the attorney has indicated it has been, subparagraph (c) of Rule 4-1.16 states:
When ordered to do so by a tribunal a lawyer shall continue representation notwithstanding good cause for terminating the representation.

The inquiring attorney must be certain the court fully understands that his continued representation of both the carrier and the employer is a conflict of interest. If the court nevertheless refuses to permit the inquiring attorney to withdraw, the attorney should then, if possible, encourage the clients to obtain new counsel and to seek substitutions of counsel. If only one party obtains new counsel, then Rule 4-1.16(c) will require the attorney to continue his representation of the other party despite the conflict of interest. See Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir. 1986).