The Florida Bar

March 14, 1978
An attorney engaged by the Florida Department of Health and Rehabilitative Services may not ethically represent, in actions for back child support payments, both wife A against former husband A, and wife B, who is husband A's second wife, against former husband B, because of actual or potential conflicts of interest and because of the appearance of impropriety.

CPR: DR 5-105; Canon 9

Vice-chairman Richman stated the opinion of the committee:

A private attorney engaged by the State of Florida Department of Health and Rehabilitative Services inquires as to whether he may ethically represent two parties under the following circumstances: he was first engaged to represent wife (A) against former husband (A) in an action for child support owed by husband (A) to wife (A). Husband (A)'s defense is that he has since remarried to wife (B) and is supporting her children because wife (B) is not receiving child support from her former husband, husband (B).

Subsequently, the same attorney was asked by the Department of Health and Rehabilitative Services through a request for legal assistance to represent wife (B) against husband (B) to obtain child support. At a meeting with the attorney she was accompanied by husband (A). The inquiring attorney suggests that in both instances the client is the Department of Rehabilitative Services rather than the individual wives since in the first case, the rights of wife (A) have been subrogated to the Department and in the second instance, the rights of wife (B) are being enforced by the State by virtue of a power of attorney.

A majority of the Committee answers the inquiry in the negative both because of the appearance of impropriety and the actual or potential conflict.

DR 5-105(B) provides: "A lawyer shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C)."

DR 5-105(C) provides: "In situations covered by DR 5-105(A) and (B), the lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

The situation posed presents a potential and, quite probably, actual conflict. In representing wife (A) against former husband (A), the Department through its attorney will be taking action that may have the effect of reducing husband (A)'s income and resources and thus adversely affect his ability to support wife (B). In the second action, the Department would be seeking to obtain funds for wife (B). The action against husband (A) would appear to be adverse to the interests of wife (B).

The majority of the Committee does not believe that it can be said that "... it is obvious" that the lawyer for the Department under those circumstances can adequately represent the interests of both wife (A) and wife (B) even with full disclosure nor, under the circumstances, does it seem likely that such consent will be freely and knowingly given by the parties put in the position of having to seek the aid of the State agency in the first instance. In addition, there is a discernible potential for husband (A) during the attorney's representation of wife (B) to attempt to influence the attorney with regard to husband (A)'s obligation to former wife (A).

Moreover, under Canon 9, the situation postulated may well present an appearance of professional impropriety. The practical effect of the action requested to be taken by the attorney would be for him to be handling two matters in one of which he would be acting for, and in the other against, the interests of one party, wife (B).

A minority of the Committee are of the opinion that the representation of wife (B) does not necessarily create a conflict of interest but that the attorney should be cautioned about the potential conflict and should advise the client of that potential at the time the representation is undertaken.

[Revised: 08-24-2011]