The Florida Bar
OPINION 75-17 (Reconsideration)The committee adheres to Opinion 75-17. The prohibition set forth in Opinion 75-17 applies when plaintiff's personal injury and insurance defense cases represent a not-insignificant portion of the attorney's practice and, therefore, have an economic impact upon his practice that is likely to or may affect his independent professional judgment. Opinion 75-17 is not addressed to occasional or sporadic employment by an insurance company which is not a significant part of the attorney's practice.
The term "obvious" in DR 5-105 (multiple representation permitted if it is obvious the lawyer can adequately represent the interest of each client) has objective, as well as subjective, connotations.
CPR: Canon 5, Canon9; DR 5-105(A), DR 5-105(C)
Opinions: 65-41, 75-17
Chairman Lehan stated the opinion of the committee:
We have been asked to reconsider Advisory Opinion 75-17. Briefly summarized, Opinion 75-17 proscribes a firm's representation of plaintiffs in a number of personal injury cases brought against an insurance company (or its insured) which the firm also represents concurrently on the defense side in a number of other personal injury cases in the same geographical area. The foregoing is intended as only a brief outline of Opinion 75-17, and the opinion as a whole, of course, speaks for itself and says what it does and does not address.
We interpret the current requests for reconsideration to present basically two questions:
(1) Does Opinion 75-17 continue to represent the Committee's view as to proper application of the Florida Code of Professional Responsibility to the facts addressed in that opinion to which that opinion is specifically restricted?
(2) If the answer to (1) is "yes," does 75-17 address fact situations where a firm had less than a number of personal injury cases pending against an insurance company (or its insured) and at the same time and in the same geographical area has less than a number of personal injury cases of the same general kind in which the firm is defending that same insurance company?
As to question (1), the Committee majority (including now a number of members who were not members of the Committee when 75-17 was originally considered) adheres to Opinion 75-17 for the reasons stated therein and with the following additional guidelines.
As stated in 75-17, that advisory opinion is only addressed to the factual situation referred to therein, including that opinion's first paragraph and its last three paragraphs expressing the majority view. 75-17 refers to, among other things, that opinion being restricted to personal injury litigation involving insurance defense and plaintiffs' work of the types described. That opinion makes reference to representation by an attorney of an insurance company and of personal injury plaintiffs in "number of cases." The Committee adds here its view that a lawyer will have such "number of cases" which will bring its multiple representation conduct of the type referred to in 75-17 within the scope of 75-17 when such cases represent a not insignificant portion of his practice and therefore have an economic impact upon his practice which either is likely to or may affect his independent professional judgment. Economic considerations, of course, may not countenance departures from the standard s contained in the Code.
The requests for reconsideration of 75-17 refer to Opinion 65-41, which, while expressing serious reservations as to the type of multiple representation referred to in that opinion, provided for continuation of such multiple representation under certain circumstances if, after careful consideration, the attorney decides that his relationships with any of the parties will not affect his ability to represent both, especially the client(s) on the plaintiff's side, fully and fairly. Opinion 65-41 went on to state that any doubts in that regard shall be resolved against such multiple representation even if undertaken with the consents of all concerned.
Opinion 65-41 was rendered under the former Canons of Professional Ethics. The Code of Professional Responsibility, in our view, has added additional standards applicable to the types of facts at hand. Those additional standards are particularly contained in Canon 5, entitled "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client," and especially in DR 5-105, entitled "Refusing To Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer."
DR 5-105(A) provides that a lawyer shall decline representation "if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected" (emphasis added) by its acceptance and DR 5-105(C) states that a lawyer may represent multiple clients when there has been certain described disclosure and consent, " if it is obvious that he can adequately represent the interest of each." (Emphasis added.) DR 5-105(C) in that respect says:
... a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure.... [Emphasis added.]
That is, under the Code if there is an absence of the obviousness referred to in DR 5-105(C), it appears irrelevant whether or not there has been such consent of all concerned.
For reasons including those set forth in Opinion 75-17, the Committee majority cannot say that lawyer's judgment is not likely to be adversely affected by his dual position under the facts of 75-17 and especially cannot say that it is obvious that he can adequately represent the interest of each client. It may be worth noting more specifically that, as indicated above, DR 5-105(C) is not worded so as to state that an attorney may undertake such representation unless it is obvious that he cannot adequately represent the interests of each party; it must be obvious that he can .
Opinion 75-17 referred to an example of factors under consideration as including circumstances involving the exercise of the attorney's independent judgment on behalf of a personal injury plaintiff as to a proper settlement sum in a suit against the attorney's insurance company client. Considering factors included on the other side of the coin, we cannot say (adapting the type of approach referred to in 5-105(C)) that it would be obvious that under these types of circumstances the attorney who represents such personal injury plaintiffs is not privy to settlement attitudes and policies of his insurance company client.
In addition, reference to Canon 9 of the Code, entitled "A Lawyer Should Avoid Even the Appearance of Professional Impropriety," is contained in Opinion 75-17. We add here that in our view the term "obvious" has objective, and not simply subjective, connotations and that the above-quoted portions of DR 5-105 dovetail to some extent with Canon 9 and may well be concerned with appearance of impropriety as well as impropriety itself.
We reiterate that, in any event, even in situations where such type of multiple representation may otherwise be permitted by the Code, it would not be proper in the absence of the consent of all concerned. DR 5-105(C) provides that such consent must be after the attorney's "full disclosure" to all concerned "of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." One Committee member feels that it would be appropriate to suggest that it would be good practice and in the best interests of all concerned to make such disclosure and obtain such consent in writing. Several Committee members feel that the requirement of informed consent by the parties should be stressed, i.e. , in order for any multiple representation to be proper there must be consent after full knowledge by the parties, and not simply notice, of the foregoing possible effects referred to in DR 5-105(C).
As to question (2), the Committee majority feels that Opinion 75-17, which expressed special concern as to an attorney's representation of plaintiffs who sue an insurance company which provides regular employment to the attorney, includes and was addressed to situations involving not insignificant employment of the attorney by an insurance company in personal injury cases during a period of time in which the attorney also sues that same insurance company. Opinion 75-17 was not addressed to occasional or sporadic or insignificant employment by an insurance company which is not a significant part of the practice of the attorney. One example of same would be where the major portion of the practice of a trial attorney is devoted to personal injury plaintiff's work, and the attorney, who has a case or two pending against a particular insurance company, is asked to become associated, for the purpose of jury selection, with the main attorneys for the insurance company in the defense of anothe r personal injury case, those main attorneys not being local. The foregoing example was the subject of a recent staff counsel informal opinion interpreting Opinion 75-17 in response to an inquiry from an attorney; that informal opinion found that Opinion 75-17 did not proscribe the attorney's representation of the insurance company under those circumstances, with which we concur.
Other potential examples of such types of multiple representation situations not addressed by Opinion 75-17 are probably too numerous to be susceptible of more precise description or definition and must necessarily be considered on a case-by-case basis. Situations generally referred to in question (2) may or may not involve circumstances under which it is " obvious that he can adequately represent the interest of each party involved." Factors to be considered by the attorney in arriving at a decision as to whether the Code applies to multiple representation of the type referred to in question (2) are set forth in Code provisions referred to in Opinion 75-17. We add that even if an attorney's representation of the type referred to in Opinion 75-17 is only occasional or sporadic, it may nonetheless be not insignificant in terms of the type of economic impact referred to above; therefore even in instances of such occasional or sporadic representation the attorney should take into consideration the guides in the Code referred to in Opinion 75-17 and herein and should resolve any doubts against undertaking the multiple representation.
A minority of the Committee feels that we should in this reconsideration restate the initial inquiry and then answer it in the manner referred to in the following paragraph.
The initial inquiry was limited to whether or not it is permissible for a lawyer and his firm to represent a particular insurance company by defending that company in a number of personal injury cases at a given time and, at the same time, represent plaintiffs in other personal injury cases against the same insurance company with the full knowledge and consent of both the plaintiffs and the insurance company. The answer, in the minority view, is, yes, if the lawyer or the firm can do so without loss of independent professional judgment, if he can do so without creating an appearance of impropriety, if he has obtained informed consents of both parties after giving them full knowledge and disclosure of the situation as provided in DR 5-105(C), and if it is obvious that he can adequately represent the interests of both clients. When the attorney asks himself these questions and has to answer any one or more with a "no," then our opinion is that he cannot engage in such representation. The minority feels that the foregoing paragraph represents what the majority really is saying and would lead to the same result.