The Florida Bar

May 21, 1971

A member of the Attorney General's staff should not proceed in an action against a former private client unless he has that client's consent.

CPR: EC 9-2

Chairman Massey stated the opinion of the committee:

A member of The Florida Bar is now on the staff of the Attorney General's office for the state. Previously, he was associated with a private law firm in representation of a corporate client. He is now involved in litigation in behalf of the state as it pertains to a land transaction between the state and this former corporate client. The attorney is not aware of any knowledge of the former client's operations, plans or status as concerns the involved litigation. He has inquired of his old private firm if it objects to his handling of the litigation. May he ethically handle the litigation?

It is first observed that if the former private client did not object to the representation in behalf of the state, there would normally be no ethical problem. Consent is generally the crux of this type of matter. An exception exists when public confidence might be undermined by reason of substantial publicity being given to the representation and to the fact of the inquiring attorney having previously been on the side of the private client. See EC 9-2. In the instant case, a majority of the Committee sees no ethical problem assuming consent is given. On the other hand, the Committee determines, assuming consent is not given, the attorney should not proceed with the representation of the state. In a large measure, this result obtains since the appearance of professional impropriety must be avoided.

Certain members of the Committee observe that once a lawyer has rendered service for a particular client, there is nothing in the CPR to the effect he may never undertake representation adverse to the former client in the absence of consent. Generally, a lawyer should be wary of accepting employment adverse to a former client and he may not switch sides with respect to the same or related matters. However, there can be situations wherein former representation is so unrelated in subject matter or so distant in time that the lawyer is not ethically barred from representation in opposition to the former client notwithstanding lack of consent.

[Revised: 08-24-2011]