The Florida Bar

July 31, 1962

There appears to be no conflict of interest where counsel who had previously represented a widow of a decedent killed in a plane crash are asked to represent one pilot against the other pilot and the owner of the planes, but it would appear advisable to obtain the consent of former client after full disclosure.

Canon: 6

Vice-Chairman Smith stated the opinion of the committee:

A member of The Florida Bar states that his firm recently concluded a law suit in which he represented the widow of a decedent who was killed in an airplane collision. In that action, suit was brought against the pilots of both planes and a corporation which owned both planes. The firm settled the case against the corporation and obtained a jury verdict against the pilot of plane “A.” The pilot of plane “B” apparently was found not guilty. The firm has now been asked to represent the pilot of plane “B” in an action against the pilot of plane “A” and the owner of the planes.

Canon 6 of the Canons of Professional Ethics relates to adverse influences and conflicting interests. Drinker, Legal Ethics, in a discussion of this Canon states on page 105:

The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection.

In his letter, he states that he can conceive of no claim being made against his former client and does not believe that any confidential information received from that client will be involved in the litigation now contemplated. Cases like the one at hand are easily misunderstood by the public. However, there would appear to be no violation of Canon 6 under the circumstances related. It is his duty, however, to apply the facts in full to the tests above stated. It would appear advisable to obtain the consent of the former client, after a full disclosure of the facts, before accepting the employment contemplated.

One member of the Committee feels the member should not accept the employment unless he has the full and complete consent of his former client.

[Revised: 08-24-2011]