The Florida Bar
OPINION 77-18It 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
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.