The Florida Bar

May 7, 1964

It is not unethical for an attorney to proceed on behalf of a client against the partners or associates of a law firm that guaranteed payment of a mortgage.

Canons: 30, 31

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar represents the owner and holder of a second mortgage which is in default. The mortgage was sold to his client by a law firm. A partner in that firm wrote the client a letter at or about the time of purchase and stated that “the undersigned law firm” would guarantee payment of the mortgage or reimburse the client in the event of default. The letterhead of the firm indicates it was composed at the time of two partners and four associates. One of the associates, now with another firm, has questioned the ethical propriety of a lawyer bringing suit against him to enforce the alleged agreement of guaranty.

A majority of this Committee feels that it would not be unethical to proceed against the partners or associates of the firm in question. We express no formal opinion, however, as to legal liability of the associates or former associates of the firm involved. Some members of this Committee, in fact, entertain grave doubt as to the liability of the associates.

Attention is directed not only to Canon 30, which has been cited, but also to Canon 31. There it is stated that the responsibility for bringing questionable suits is the lawyer's responsibility. One member of this Committee feels that the associate in question so clearly is not liable that it would be a violation of Canon 31 to proceed against him.

[Revised: 08-24-2011]