The Florida Bar

May 8, 1961

A lawyer whose partner had on one occasion represented B in a negligence matter and whose firm has also represented B in other matters may not represent A in a mortgage foreclosure against a corporation wholly owned by B, except by express consent of all concerned after full disclosure of all the facts. This is not altered by the fact that the lawyer represented A during the transaction from which the cause of action arises.

Canons: 6, 37

Chairman Holcomb stated the opinion of the committee:

A member of The Florida Bar presents to us the following proposition:

He has for some time represented Mr. A, who last September sold certain real estate to Mr. B, who took title in C, Inc., a corporation wholly owned and controlled by B, giving back a purchase money mortgage signed only by the corporation. Mr. D represented Mr. B in the purchase and still represents him. In July, 1960, the inquirer and Mr. E formed a law partnership. Mr. E had previously represented Mr. B in a negligence matter. In November, 1960, Mr. B contracted with the firm of E and the inquirer to represent F, Inc., a sales organization for the land sold by Mr. A to Mr. B. Mr. B has a twenty-two percent interest in F, Inc. The purchase money mortgage is now in default, and Mr. A desires E and the inquirer to represent him in the foreclosure suit against C, Inc. Mr. B is not personally liable on the mortgage and would not in any way be personally involved other than through his ownership of C, Inc. and his interest in F, Inc. The member requests our opinion as to whether he may ethically appear in this matter on behalf of Mr. A.

It is the unanimous opinion of the Committee that it would not be proper for the member to appear on behalf of Mr. A in this foreclosure. The fact that Mr. B is not personally liable on the mortgage does not prevent representation of the mortgagee being in conflict with the interest of the corporate mortgagor, which is owned by Mr. B.

Such representation would appear to be contrary to Canon 6 of the Canons of Professional Ethics making it unprofessional to represent conflicting interests, except by express consent of all concerned given after full disclosure of the facts.

Mr. Drinker, in his work on Legal Ethics at page 106, says:

“Attorneys . . . should not voluntarily put themselves into positions where the conditions of their compensation may interfere with the full discharge of their duty to their clients.”

“The spirit of this rule is to be observed rather than the letter, and where counsel is aware that confidence has been reposed in him by someone not his client, but who has been assisting his client with information, he should not afterwards act against that person in any matter in which such information would be material. . . .”

The duty not to represent conflicting interests or to betray the confidences of a former client is not abrogated by a release signed by the former client.

The injunction not to represent conflicting interests applies equally to law partners representing different clients who have interests conflicting with one another. . . .”

[Revised: 08-24-2011]