The Florida Bar

June 1, 1966

When the lawyer who represented the defendant in certain litigation has since joined the law firm that represented, and continues to represent, the plaintiff, the law firm may not represent the plaintiff in a contemplated action to enforce the decree entered in the prior litigation unless the defendant consents. This is true even though the defendant's former lawyer does not participate in the enforcement proceeding. However, the firm may review the matter with new counsel designated to act for the plaintiff.

Canon: 6
Opinions: 65-46; ABA Informal C-437

Chairman Kittleson stated the opinion of the committee:

A member of The Florida Bar has requested the Committee's advice on a question involving possible adverse and conflicting interests. We understand the circumstances to be these. His firm has represented the plaintiff in a suit arising out of alleged violation of trade secrets. Attorney B of another law firm has represented the defendant in the suit. Ultimately, the suit was settled by written agreement, wherein the defendant agreed to cease manufacture of a certain product. The plaintiff continued to be a substantial client of the firm in corporate legal matters, but Attorney B and his firm had no occasion to represent the defendant after the suit was settled. More than one year after the settlement, the inquirer's firm wrote a letter on behalf of the plaintiff to Attorney B, stating that the plaintiff felt that the defendant had violated the settlement agreement by resuming manufacture of the prohibited product. Attorney B replied, stating that in his opinion the settlement agreement had not been violated. No further action was taken. Several months later, Attorney B's law firm was dissolved and he and one of his partners became partners in the plaintiff's firm. The plaintiff has now asked this firm to represent the plaintiff again, seeking to compel the defendant to show cause why the defendant's conduct does not constitute a violation of the settlement agreement. Attorney B will not participate in the contemplated action. Nevertheless, the defendant refuses to consent to the representation of the plaintiff by the firm. If the plaintiff is required to employ other counsel, the new counsel will be required to spend considerable time in duplicating the legal research and acquiring the necessary technical knowledge that is already available in the firm in question. The plaintiff is understandably unhappy at this thought. The firm is understandably unhappy at the thought of being unable to continue representation of the plaintiff, who has been a continuing and substantial client. The Committee's advice is sought on two questions: (1) Can the firm represent the plaintiff in the contemplated legal action, even without the defendant's consent, if Attorney B does not participate nor disclose his prior knowledge? (2) If not, may the lawyers in the firm having knowledge of the plaintiff's case review their files with the plaintiff's new counsel and educate him concerning the case, thus saving the plaintiff some duplication of attorney's fees?

The Committee recognizes the difficult position in which these circumstances place this firm, and the inconvenience and probable extra cost that the plaintiff may suffer if he is obliged to seek new counsel to press his claim. The Committee recognizes that this firm had no desire and intent that the circumstances should develop as they did. Nevertheless, the Committee concludes that the best interests of the profession require that the firm not participate further in the controversy between the plaintiff and the defendant, unless both parties consent.

The Committee was faced with a similar question in Opinion 65-46, where two firms represented opposite sides in a workmen's compensation matter, and where, before the matter was settled, one of the participating lawyers on the employer's side left his firm and joined the firm representing the claimant. The Committee advised that the firm representing the claimant should withdraw from further handling of the claim unless both parties consented to the continued representation.

The American Bar Association Standing Committee on Professional Ethics recently considered the situation of two lawyers desiring to form a partnership where they had pending many cases against each other. The ABA Committee concluded that if lawyers in that situation desire to form a partnership, there seems to be no alternative to their dropping out of both sides of the pending cases. The Committee commented that under the Canons of Professional Ethics and the rulings of the Committee, a lawyer cannot represent conflicting interests, except by express consent of all concerned given after full disclosure, and that if one lawyer is disqualified, his partner is equally disqualified. ABA Informal Opinion C-437 (1961).

The Committee does, however, feel that in fairness to the plaintiff, the firm may properly review the file and the background of the case with the plaintiff's new counsel. One member of the Committee believes that the firm's assistance to the new counsel should be limited to providing copies of memoranda, briefs, etc., from the file, and that the firm should avoid active consultation with and advice to the new counsel. Admittedly, it is difficult to find the proper balance between protecting the plaintiff's interest and protecting the defendant's interest.

[Revised: 08-24-2011]