The Florida Bar

January 25, 1966

An attorney employed by the tortfeasor's insurance carrier to act for an injured minor in concluding a settlement agreed upon by the carrier and the minor's parents should be sensitive to adverse influences and conflicting interests.

Canon: 6
Opinion: ABA 235

Chairman Kittleson stated the opinion of the committee:

A member of The Florida Bar who is a Circuit Judge requests any opinions or decisions that we may have on certain questions which relate to an attorney's ethical duties in behalf of a minor. Both questions deal with a minor who has received personal injuries, where the injuring party's insurance carrier has agreed upon a settlement with the minor and his parents. The first question asks whether the attorney employed by the insurer to represent the insured may also represent the minor in a proceeding to remove the minor's disabilities of non-age, in order that the minor can execute a release without the necessity of a friendly suit. The second question, after presupposing that a friendly suit has been instituted and that another attorney has been retained to represent the minor, asks whether the attorney's duty is merely to accomplish approval of the settlement or whether he should evaluate the settlement himself, and, if he finds it objectionable, seek a different or better settlement. This question also presupposes that the insurer has suggested or even selected the attorney to represent the minor and has agreed to pay the attorney's fee.

The pertinent Canon of Professional Ethics is Canon 6, “Adverse Influences and Conflicting Interests.”

We regret that we do not find any opinions of the Florida Committee that bear directly on these questions.

Disclosure to and consent of all affected parties can often overcome what would otherwise be a conflict-of-interest situation, but the problem may be less simple where the affected party is a minor.

Of interest is Opinion 235 of The American Bar Association Standing Committee on Professional Ethics, dated November 22, 1941. The Committee considered a common practice where an insurance company adjuster negotiated a settlement of a wrongful death claim with the next of kin, and, when a settlement was agreed upon, the insurance company employed a lawyer, with the consent of the next of kin (whether minors or not), to start administration proceedings for the purpose of securing probate court approval of the settlement because, under applicable state law, an administrator of the decedent's estate was the only person authorized to sue on a wrongful death claim. The ABA Committee was asked whether a lawyer ethically may represent an administrator in such case, and be paid by the insurance company to obtain probate court approval of the settlement, where all the facts of employment are specifically agreed to by the beneficiaries. The ABA Committee found no ethical objection to this practice, but emphasized that the probate court is the court which of its own motion traditionally concerns itself with the protection and welfare of widows, orphans, and minors. The Committee said:

We believe, therefore, that if a compromise of an accidental death case has been arrived at there is no good reason why the amount awarded should be reduced by further attorney's fees if (1) the attorney for the insurance company discloses to the court not only his relationship to his employer, but also the entire record of the case; and (2) the court itself inquires into all of the circumstances, reserving the right to appoint guardians or referees should that be in the interest of justice.

One member of the Committee dissented, and expressed his belief that a lawyer so selected and paid by the insurer would be representing conflicting interests, contrary to Canon 6.

The Florida Committee will be glad to consider and give an opinion on the questions, if it can do so within existing policies prescribed by the Board of Governors. The existing policies require that the Committee may give opinions on matters of professional conduct only to members in good standing of The Florida Bar, concerning their own present or proposed conduct. In other words, the Committee is not allowed to give opinions concerning the conduct of persons other than the inquiring attorney himself. Furthermore, the Committee is not to give opinions directly related to cases where disciplinary action is pending or contemplated. Any person seeking advice on matters of professional ethics, where the inquiry falls outside the authorized activities of the Committee, may direct his request to the Board of Governors.

[Revised: 08-24-2011]