The Florida Bar

April 5, 1965

The interests of the profession and the public are best served if a lawyer does not act as attorney for one person in a litigated matter while concurrently acting as attorney for the first client's adversary in another litigated matter, even though the matters are unrelated and even in the absence of pertinent confidential communications.

Canons: 6, 32, 37

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar who is presently a Circuit Judge states that three negligence actions are presently pending before a court in which one G.S. is a party. In two of the actions, G.S. is a party defendant and is represented by lawyer A. In the third action, which does not relate to the same accident or the same parties, G.S. is the plaintiff and is represented in that action by lawyer B. Lawyer A, however, has appeared on behalf of the defense in the third action. The facts, as stated, do not indicate which of the actions was first instituted. The inquiry is whether lawyer A is guilty of a violation of Canon 6 by virtue of his representing G.S. in two of the actions and opposing G.S. in the third action.

The Committee stresses at the outset that it is not authorized to, and does not attempt to, pass on matters of law or mixed questions of law and fact.

It is the opinion of the Committee that Canon 6 of the Canons of Professional Ethics is not involved merely because lawyer A does not represent G.S. in the third action. Thus he is not called upon to represent conflicting interests in a single factual situation and it does not appear that he has the duty of contending in a single situation that which his duty to another client requires him to oppose.

Canon 37 could be involved. That Canon requires that a lawyer preserve his client's confidences. If G.S. imparted to lawyer A any confidential communications in the actions in which G.S. is represented by lawyer A, and if such communications are in any way relevant or pertinent to the issues formed in the third action, then lawyer A obviously cannot defend the third action without violating Canon 37.

Despite the foregoing, it is the unanimous view of the Committee that lawyer A either should withdraw from the representation of G.S. in the first two actions or should not defend the third action which is brought by G.S. In arriving at this conclusion, the Committee relies upon general provisions of the Canons such as Canons 32 and 37, which in effect require that a lawyer should avoid positions which may be misunderstood and which would not be consistent with the highest duties and obligations of the profession.

Assuming that lawyer A, in the course of defending the third action against G.S., has not learned facts which would prevent an honest discharge of his duties in the first two actions, it is the view of the Committee that lawyer A should withdraw from the representation of the defendant in the third action. Quite possibly, in defending G.S. in the first two actions, lawyer A has learned something of the physical condition, driving ability or other pertinent matters, which might be used against G.S. in the third action. Such considerations persuade the Committee to the view expressed here. Because of the possibility of such knowledge, the Committee does not believe it would be proper for lawyer A to withdraw from either or both of the first two actions and continue to defend the third.

[Revised: 08-24-2011]