The Florida Bar

September 28, 1965

A lawyer who, at the request of an insurance company, defended the automobile owner in litigation arising from an accident should not thereafter defend the driver in a separate suit brought by the owner and arising out of the same accident, even when requested to do so by the same insurance company.

Canon: 6

Chairman Kittleson stated the opinion of the committee:

Mrs. Owner and Mr. Passenger were riding in Mrs. Owner's automobile which was operated by Mr. Driver, when the automobile was involved in an accident. Mr. Passenger sued Mrs. Owner to recover for his personal injuries, basing the suit upon Mr. Driver's alleged grossly negligent driving. Lawyer, at the request of Mrs. Owner's liability insurance carrier, successfully defended the suit, which resulted in a not guilty verdict in favor of Mrs. Owner. The Florida guest statute was, of course, pertinent, and the jury was instructed to find for Mrs. Owner unless Mr. Driver had been guilty of gross negligence. Mrs. Owner was the only defendant; Mr. Driver was not a defendant. Mrs. Owner has now filed suit against Mr. Driver to recover for her injuries arising from the same accident, alleging only simple negligence against the defendant. The insurance carrier believes that it is obligated to defend Mr. Driver, by virtue of Mrs. Owner's insurance policy, because under the policy a person driving the vehicle with the permission of the owner (named insured) is an additional insured. The insurance carrier has now requested Lawyer to defend Mr. Driver in the suit brought by Mrs. Owner. Mrs. Owner, in this suit, is represented by another attorney, who objects to Lawyer's participation; the objection is based upon the fact that Lawyer had previously represented Mrs. Owner in the other suit. It may be observed that Lawyer is being called upon to take the same position in the second suit that he did in the first suit, viz., that Mr. Driver was not guilty of negligent driving; the degree of negligence in issue is, however, less in the second case than it was in the first.

The Committee is unanimous in its advice that the firm should not undertake the second representation. The Committee recognizes the possibility that no wrongdoing or breach of confidence may actually result from the second representation, but the Committee believes that public confidence in the bar and in the legal profession would not be fostered by the shift of sides in litigation growing out of the same accident. No circumstances seem to exist that would compel resolving the doubt other than against the shift of sides. There is too much possibility of misunderstanding.

[Revised: 08-24-2011]