Ethics Opinion

Opinion 93-8

FLORIDA BAR ETHICS OPINION
OPINION 93-8
May 15, 1994
Advisory ethics opinions are not binding.
An attorney representing two clients in a litigated matter must move to withdraw if the interests of
the two clients become adverse. If the court denies the attorney’s motion to withdraw, Rule
4-1.16(c) requires the attorney to continue the representation despite the conflict.
RPC:
Case:

4-1.7, 4-1.16
Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir. 1986)

A member of The Florida Bar has requested an advisory ethics opinion. The operative facts
as presented by the inquiring attorney are as follows. The inquiring attorney is staff counsel for an
insurance company and was asked to prepare a coverage opinion. Upon receipt of the file, however,
the attorney filed a Notice of Appearance on behalf of both the employer and carrier. The inquiring
attorney called the Ethics Hotline and was advised that this was a conflict of interest under Rule
4-1.7, and that, therefore, the attorney should withdraw. The attorney filed a Motion to Withdraw,
which was denied by the court based on the employer’s objections. The carrier has requested that
the attorney prepare a coverage opinion letter in the matter.
Rule 4-1.7 of the Rules Regulating The Florida Bar is the governing ethical standard. This
rule provides in pertinent part:
(a) Representing Adverse Interests. A lawyer shall not represent a client if
the representation of that client will be directly adverse to the interest of another
client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect
the lawyer’s responsibilities to and relationship with the other client; and
(2) Each client consents after consultation.
As this rule is applied to the inquiring attorney’s situation, it appears that he is representing
two clients with adverse interests. Therefore, the attorney should withdraw from both
representations. See Rule 4-1.16. If withdrawal is denied as the attorney has indicated it has been,
subparagraph (c) of Rule 4-1.16 states:
When ordered to do so by a tribunal a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
The inquiring attorney must be certain the court fully understands that his continued
representation of both the carrier and the employer is a conflict of interest. If the court nevertheless
refuses to permit the inquiring attorney to withdraw, the attorney should then, if possible, encourage
the clients to obtain new counsel and to seek substitutions of counsel. If only one party obtains new
counsel, then Rule 4-1.16(c) will require the attorney to continue his representation of the other
party despite the conflict of interest. See Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir.
1986).