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Opinion 75-17 (Reconsidered)

OPINION 75-17 (Reconsideration)
Advisory ethics opinions are not binding.
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,

Canon 5, Canon9; DR 5-105(A), DR 5-105(C)
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 standards 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 another
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

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
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.