The Florida Bar

Ethics Opinion

Opinion 66-5

FLORIDA BAR ETHICS OPINION
OPINION 66-5
January 25, 1966
Advisory ethics opinions are not binding.
An attorney employed by the tortfeasor’s insurance carrier to act for an injured minor in
concluding a settlement agreed upon by the carrier and the minor’s parents should be sensitive to
adverse influences and conflicting interests.
Canon:
Opinion:

6
ABA 235

Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar who is a Circuit Judge requests any opinions or
decisions that we may have on certain questions which relate to an attorney’s
ethical duties in behalf of a minor. Both questions deal with a minor who has
received personal injuries, where the injuring party’s insurance carrier has agreed
upon a settlement with the minor and his parents. The first question asks whether
the attorney employed by the insurer to represent the insured may also represent
the minor in a proceeding to remove the minor’s disabilities of non-age, in order
that the minor can execute a release without the necessity of a friendly suit. The
second question, after presupposing that a friendly suit has been instituted and
that another attorney has been retained to represent the minor, asks whether the
attorney’s duty is merely to accomplish approval of the settlement or whether he
should evaluate the settlement himself, and, if he finds it objectionable, seek a
different or better settlement. This question also presupposes that the insurer has
suggested or even selected the attorney to represent the minor and has agreed to
pay the attorney’s fee.
The pertinent Canon of Professional Ethics is Canon 6, “Adverse Influences and
Conflicting Interests.”
We regret that we do not find any opinions of the Florida Committee that bear directly on
these questions.
Disclosure to and consent of all affected parties can often overcome what would
otherwise be a conflict-of-interest situation, but the problem may be less simple where the
affected party is a minor.
Of interest is Opinion 235 of The American Bar Association Standing Committee on
Professional Ethics, dated November 22, 1941. The Committee considered a common practice
where an insurance company adjuster negotiated a settlement of a wrongful death claim with the
next of kin, and, when a settlement was agreed upon, the insurance company employed a lawyer,
with the consent of the next of kin (whether minors or not), to start administration proceedings
for the purpose of securing probate court approval of the settlement because, under applicable

state law, an administrator of the decedent’s estate was the only person authorized to sue on a
wrongful death claim. The ABA Committee was asked whether a lawyer ethically may represent
an administrator in such case, and be paid by the insurance company to obtain probate court
approval of the settlement, where all the facts of employment are specifically agreed to by the
beneficiaries. The ABA Committee found no ethical objection to this practice, but emphasized
that the probate court is the court which of its own motion traditionally concerns itself with the
protection and welfare of widows, orphans, and minors. The Committee said:
We believe, therefore, that if a compromise of an accidental death case has
been arrived at there is no good reason why the amount awarded should be
reduced by further attorney’s fees if (1) the attorney for the insurance company
discloses to the court not only his relationship to his employer, but also the entire
record of the case; and (2) the court itself inquires into all of the circumstances,
reserving the right to appoint guardians or referees should that be in the interest of
justice.
One member of the Committee dissented, and expressed his belief that a lawyer so
selected and paid by the insurer would be representing conflicting interests, contrary to Canon 6.
The Florida Committee will be glad to consider and give an opinion on the questions, if it
can do so within existing policies prescribed by the Board of Governors. The existing policies
require that the Committee may give opinions on matters of professional conduct only to
members in good standing of The Florida Bar, concerning their own present or proposed
conduct. In other words, the Committee is not allowed to give opinions concerning the conduct
of persons other than the inquiring attorney himself. Furthermore, the Committee is not to give
opinions directly related to cases where disciplinary action is pending or contemplated. Any
person seeking advice on matters of professional ethics, where the inquiry falls outside the
authorized activities of the Committee, may direct his request to the Board of Governors.