The Florida Bar

Ethics Opinion

Opinion 65-56

September 28, 1965
Advisory ethics opinions are not binding.
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.


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