FLORIDA BAR ETHICS OPINION
November 7, 1966
Advisory ethics opinions are not binding.
A corporation’s attorney who acted for both the corporation and its president in drafting a
noncompetitive agreement formalizing the understanding already reached by them may later
represent the corporation in proceedings to enforce the agreement. This assumes that nothing of a
confidential nature was learned by the attorney from the president and that the operative facts
surrounding the alleged violation of the agreement will not involve events that might have come
to the knowledge of counsel at the time of the preparation of the agreement.
ABA Informal 218
Chairman MacDonald stated the opinion of the committee:
Several years ago, a member of The Florida Bar was engaged to represent a
corporation on a retainer basis. Approximately one year ago corporate operations
required a refinancing and additional investment in the corporation. In the course
of performing the various legal services incident to this development, the attorney
drafted an agreement between an individual, who at that time was the president of
the corporation, and the corporation containing, inter alia, a non-competitive
covenant. Although the attorney at the time understood that he was nominally
representing both the individual and the corporation he in fact merely acted for all
concerned in formalizing an understanding already reached between the
individual concerned and the corporation. In particular, nothing of a confidential
nature was learned from the individual. The attorney has now been requested to
enforce the non-competitive agreement by suit for injunction, and inquires of us
as to the propriety of such representation on his part. Apparently, the operative
facts surrounding the alleged violation of the non-competitive agreement will not
involve events which might have come to the knowledge of counsel at the time of
the preparation of the agreement.
In the present situation and circumstances enumerated, we see no objection to the
attorney proceeding on behalf of the corporation to procure enforcement of the non-competitive
agreement. We do, however, leave one caveat. We have not considered, and do not understand,
that there is a problem which might invoke the provisions of Canon 19. We therefore do not
comment upon the effect of that canon in this situation.