The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 61-20
October 16, 1961

It is improper for an attorney to institute an action against a client represented by another who is listed “of counsel” on the letterhead of the first attorney. Full disclosure and consent, or severance of the relationship between the attorneys at the time of retainer, may remove the ethical impropriety.

Canons: 6, 32, 34

Chairman Holcomb stated the opinion of the committee:

A member of The Florida Bar inquires concerning the propriety of his representing the Citizens Bank of __________ County as plaintiff against certain defendants represented by Mr. A, who appears on the firm letterhead as “of counsel.” The consensus of opinion is that such representation is improper, with the possible exception that if both parties are fully advised of such representation and consent thereto it might be proper.

Drinker on Legal Ethics, page 103, under “Duty Not to Represent Conflicting Interests,” recites that “‘It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel,' ” and “It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.” At page 106, Drinker says: “The injunction not to represent conflicting interests applies equally to law partners representing different clients who have interests conflicting with one another. . . .”

There is some question as to whether the mere fact that one attorney uses the letterhead on which the other appears as “Of Counsel” is conclusive proof that the two were associated at the time the letter was written. If the relationship had changed so that they were no longer in fact associated, there would of course be no objection to both appearing on opposite sides of the case; but if they are actually associated in the practice of law, we deem it improper for them to appear on opposite sides of the case.

We call attention also to the possible violation of Canon 34 relating to a division of fees, to Canon 32 requiring a lawyer to honor his profession in the best interests of his clients, to Canon 6 making it unprofessional to represent conflicting interests. As to Canon 6, Mr. Drinker says: “ ‘Attorneys . . . should not voluntarily put themselves into positions where the conditions of their compensation may interfere with the full discharge of their duty to their clients.’ ” (Page 106.)

Under the circumstances, we believe that representation by Mr. A of the defendants in the case in which the inquirer is representing the plaintiffs while Mr. A appears on the letterhead as “Of Counsel” would be improper.

[Revised: 08-24-2011]