Ethics Opinion

Opinion 87-1

FLORIDA BAR ETHICS OPINION
OPINION 87-1
May 1, 1987
Advisory ethics opinions are not binding.
A lawyer may represent multiple codefendants having a potential conflict of interests only if he
reasonably believes the representation of any one of them will not be adversely affected by the
lawyer’s responsibilities to the others, and if each consents after consultation. Multiple
representation is impermissible if an actual conflict exists.
RPC:

4-1.6, 4-1.7, 4-1.9

The inquiring attorney asks whether it is unethical for a Florida attorney (presumably
himself) to represent two doctors and a medical clinic in a medical malpractice case when each is
a named defendant in the suit and each could be responsible to the others for contribution. The
attorney also asks whether, if withdrawal is required, he should withdraw as counsel for all three
codefendants or for only two of the three codefendants.
Conflict of interest rules governing an attorney’s conduct with respect to simultaneous
representation of codefendants in litigation are set forth in Rule 4-1.7(b) of the rules regulating
The Florida Bar:
A lawyer shall not represent a client if the lawyer’s exercise of independent
professional judgment in the representation of that client may be materially
limited by the lawyer’s responsibilities to another client or to a third person or by
the lawyer’s own interest, unless: (1) the lawyer reasonably believes the
representation will not be adversely affected; and (2) the client consents after
consultation.
Thus, the inquiring attorney may ethically continue to represent the three codefendants in
the malpractice action only if he reasonably believes that his exercise of independent
professional judgment on behalf of one codefendant will not be adversely affected by his
responsibilities to another of the codefendants, and if each codefendant consents to the multiple
representation after consultation. The consultation “shall include explanation of the implications
of the common representation and the advantages and risks involved.” Rule 4-1.7(c).
The inquiring attorney’s request indicates that the interests of the three codefendants are
potentially, if not actually, conflicting. When an actual conflict exists, it is extremely unlikely
that the attorney’s representation of one codefendant would not be adversely affected by his
responsibilities to and representation of the other codefendants. See Rule 4-1.7, Comment
(“Conflicts in Litigation”).
If an actual conflict is present, the attorney cannot ethically continue to represent all three
codefendants. As the Comment to Rule 4-1.7 states, whether the attorney may continue to
represent any of the codefendants is determined by Rule 4-1.9, which provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or a substantially related matter in
which that person’s interests are materially adverse to the interests of the former
client unless the former client contents after consultation; or
(b) Use information relating to the representation to the disadvantage of the
former client except as Rule 4-1.6 [concerning an attorney’s duty of
confidentiality to his clients] would permit with respect to a client or when the
information has become generally known.
Thus, if there is an actual conflict among the codefendants, the attorney may ethically
continue to represent one of the codefendants (or two) only if he will not violate Rule 4-1.9 in
doing so.