The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 66-60
November 7, 1966

A corporation's attorney who acted for both the corporation and its president in drafting a noncompetitive agreement formalizing the understanding already reached by them may later represent the corporation in proceedings to enforce the agreement. This assumes that nothing of a confidential nature was learned by the attorney from the president and that the operative facts surrounding the alleged violation of the agreement will not involve events that might have come to the knowledge of counsel at the time of the preparation of the agreement.

Canon: 6
Opinion: ABA Informal 218

Chairman MacDonald stated the opinion of the committee:

Several years ago, a member of The Florida Bar was engaged to represent a corporation on a retainer basis. Approximately one year ago corporate operations required a refinancing and additional investment in the corporation. In the course of performing the various legal services incident to this development, the attorney drafted an agreement between an individual, who at that time was the president of the corporation, and the corporation containing, inter alia, a non-competitive covenant. Although the attorney at the time understood that he was nominally representing both the individual and the corporation he in fact merely acted for all concerned in formalizing an understanding already reached between the individual concerned and the corporation. In particular, nothing of a confidential nature was learned from the individual. The attorney has now been requested to enforce the non-competitive agreement by suit for injunction, and inquires of us as to the propriety of such representation on his part. Apparently, the operative facts surrounding the alleged violation of the non-competitive agreement will not involve events which might have come to the knowledge of counsel at the time of the preparation of the agreement.

In the present situation and circumstances enumerated, we see no objection to the attorney proceeding on behalf of the corporation to procure enforcement of the non-competitive agreement. We do, however, leave one caveat. We have not considered, and do not understand, that there is a problem which might invoke the provisions of Canon 19. We therefore do not comment upon the effect of that canon in this situation.

[Revised: 08-24-2011]