The Florida Bar

Ethics Opinion

Opinion 71-18

June 21, 1971
Advisory ethics opinions are not binding.
An attorney may represent a current client against a former client if the current matter is unrelated
to the prior matters and if no confidences material to the current representation obtained in the prior
representation. The mere fact that a bank’s attorney’s fee for handling a loan transaction was
charged to the borrower does not preclude the bank’s attorney from representing the bank in a
subsequent suit on the promissory note.

DR 5-107
Chairman Massey stated the opinion of the committee:
An inquiring attorney represents a commercial bank which has litigation against
an individual and corporations of which the individual is either stockholder, officer,
director, or general manager. The litigation involves promissory notes and security
agreements drafted by the inquirer’s law firm but for which the fee was an expense
paid by the borrower. As to the corporate obligations, the individual executed
guarantees in connection therewith. One corporation is involved because it is alleged
to be the alter ego of a borrowing corporation although it is not an obligor on the
Opposing counsel in this litigation raised a question as to the propriety of the
inquirer representing the bank. It now appears the individual and at least one of the
corporations are bankrupt and the bank desires the inquirer to hotly pursue the matter
in bankruptcy court. The inquirer apparently did handle certain transactions which
were related to the individual, but said transactions were limited and unrelated to
matters involved in the mentioned litigation. The other transactions were review and
negotiation of three leases for an entirely separate corporation; making effort to
purchase some property for the separate corporation; referring a personal injury case
involving the individual’s son; and defending a separate corporation on a breach of
lease suit. There apparently was no knowledge given or available (nor involved in
the named representations) to the inquirer or his firm which would adversely affect
the individual or the corporate defendants of the bank litigation. Communication in
writing has been addressed to the inquirer by the individual objecting to his
representation of the bank.

The inquirer’s concern extends beyond the immediate problem to those loan transactions his
firm handles for the bank which later result in litigation when the fee has been charged to the
borrower, as is the normal course of business procedure.
Assuming the non-acquisition of confidential information in the other specified
representations, which information would be material to the existing litigation, there is no conflict
or impropriety in the inquirer’s conduct in behalf of the bank in the existing litigation and
bankruptcy proceedings. Beyond this, if there has been no relation between the inquirer and a

proposed defendant in a promissory note suit or like litigation excepting the payment of the fee by
the borrower-defendant, there is absolutely no conflict or impropriety involved. Such proposed
representation does not contravene DR 5-107 or the ethical considerations applicable thereto.