The Florida Bar
OPINION 76-2An attorney employed by an insurance company may not ethically represent both a minor claimant and the insurer in a "friendly suit" to gain court approval of a settlement between the two parties. An attorney employed by and representing an insurance company may not ethically represent in probate proceedings a personal representative seeking court approval of a wrongful death settlement between the insurer and the personal representative.
February 28, 1977
February 28, 1977
CPR: EC 5-1, DR 5-105(A), 5-107(B)
Chairman Sullivan stated the opinion of the committee:
This inquiry involves two different situations in which an insurance company agrees to settle a claim which requires court approval.
1. An insurance company agrees to settle a minor's claim. Because the settlement requires court approval, a "friendly suit" is commenced. We are asked whether the lawyer who represents and is paid by the insurance company and who is in court to obtain court approval of the agreed-upon settlement may ethically present the claimant's position to the court either by pleadings which that lawyer prepares or in person.
2. An insurance company agrees with the widow and personal representative of a decedent to settle a wrongful death claim. That claim is the only asset of the estate, and the proposed settlement requires court approval. We are asked whether the lawyer who represents and is paid by the insurance company may ethically represent the personal representative of the estate and prepare the papers necessary to open the estate and a petition seeking court approval of the settlement which states that the settlement is in the best interest of the estate.
The Committee, one member dissenting, answers "No" to the first question and "No" to the second.
The interest of the claimant, whether a minor or the personal representative of an estate, is to secure the highest possible settlement in terms of dollars. The insurance company's interest is in paying as little as possible.
In those situations, the lawyer for the insurance company, whether he becomes involved initially or after the settlement has been agreed upon, is employed to seek judicial approval of that settlement. For the lawyer to represent both the claimant and the insurance company in that situation would violate DR 5-105(A) and EC 5-1 and place him in a compromising position as to DR 5-107(B).
We recognize that not infrequently the claimant is not represented by a lawyer during the settlement negotiations with the insurance company. While no one can force a legally competent claimant to seek advice from a lawyer, the CPR does prevent the insurance company's lawyer from filling that need.
One Committeeman believes that it is not important who prepares the papers seeking court approval, but that if the lawyer for the insurance company does prepare the papers, it is essential for him to advise the court that he is not representing the claimant so that the court can then take any additional steps it feels are necessary to protect the interests of any minors or incompetents affected by the settlement.