The Florida Bar

February 15, 1966

Where a personal injury plaintiff obtains a judgment against codefendants A and B, and the insurance company for B pays the full amount of the judgment and takes an assignment from the plaintiff, there is no ethical objection to the insurance company's attorney appearing for the plaintiff in the appeal brought by A.

Canon: 6

Vice Chairman Clarkson stated the opinion of the committee:

A member of The Florida Bar has requested the Committee's advice on the question posed below.

Plaintiff “X” brought an action based upon personal injuries sustained in an automobile accident. He charged negligence against the operators of two defendant vehicles, “A” and “B”. Judgment sought was joint or several. Separate trial counsel appeared for the two defendants, each being engaged by a different liability insurance carrier. Upon trial, the jury returned a verdict for plaintiff “X” against both defendants.

After entry of judgment, counsel for defendant “A” perfected an appeal but did not post supersedeas bond. Counsel for defendant “B” did not appeal from the joint judgment. To enforce collection of the judgment, plaintiff “X” instituted garnishment proceedings against “A's” insurance company and “B's” insurance company during the pendency of the appellate proceedings involving only “X” and “A”.

“B's” insurance company discharged its trial counsel and retained substitute counsel, who filed an appearance in behalf of “B” in the garnishment proceedings. Thereafter, “B's” insurance company paid “X” the full amount of the judgment and took an assignment from “X”. Substitute counsel for “B” then filed an appearance in the appellate proceedings as counsel for the appellee, “X.”

Based upon the foregoing posture of the litigation, the inquiry is whether substitute counsel for “B” can ethically represent “X”, the original plaintiff, as the appellee in the appellate proceedings in behalf of “B's” insurance company. It is noted in the inquiry, parenthetically, that in the trial court the co-defendants, “A” and “B”, shared their work product and cooperated fully with each other on questions of damages and on certain aspects of liability where the co-defendants were not in conflict.

The Committee finds no ethical objection to the appearance of substitute counsel for “B” as attorney for the appellee in the appellate proceeding. No conflict of interest is apparent so long as “X” is fully protected and there is no possibility that the settlement arrangement between “B” and “X” will be set aside. The facts as stated indicate that “X” is fully protected and that he is a party to the appeal in name only, “B's” insurance company now being the real party in interest in opposition to appellant “A”.

The corollary problem involving the sharing of work product in the lower court by the co-defendants appears to be moot on appeal since the parties are bound by the record made in the trial court.

[Revised: 08-24-2011]