The Florida Bar

Ethics Opinion

Opinion 97-1

May 1, 1997
Advisory ethics opinions are not binding.
An attorney who has been hired by an insurance company to represent an insured owes his
primary duty to the insured. An attorney may not ethically continue the representation of the
insured under instructions from the insurance carrier that the lawyer file for summary judgment
where the attorney has determined that such a motion would be against the insured’s interest.

Rule 4-1.8(f), Rule 4-1.6, Rule 4-1.7, Rule 4-1.7(b), Rule 4-5.4(d)
70-58, 81-5

A member of the Florida Bar requested an advisory ethics opinion. The operative facts
presented by the inquirer are as follows:
An attorney is hired by an insurance company to represent its insured.
The insurance policy provides a defense for negligent acts of the insured. A
complaint has been filed against the insured alleging negligence and breach of
contract. The insurance company has already paid damages to the plaintiff
relating to damage caused by the insured’s negligence. Accordingly, the insurer
instructs the attorney to file a motion for partial summary judgment on the
negligence claim.
The attorney believes that, although he may reduce potential damages in the
lawsuit if the motion for summary judgment is granted, the complaint would no
longer contain allegations to support the insurance company’s duty to defend the
insured. It is the opinion of the attorney that the insured would have little to gain
by winning the motion and that it would be in the insured’s best interest to have
continued representation.
The attorney asks whether it would be proper to continue to represent the
insured as long as the insurance company does not affect the attorney’s exercise
of independent professional judgment on behalf of the insured. Accordingly, the
inquirer proposes to inform the insurance company that a motion for summary
judgment would not be in the best interest of the insured and will not be filed.
The Rules of Professional Conduct contemplate the potential conflict of interests that can
arise when an attorney is paid by a third party to represent a client. A common scenario under
which a third party pays the legal fees of a client is when an insurance company pays an attorney
to defend one of its insureds. Rule 4-1.8(f) prohibits a third party payment of an attorney’s fee
unless certain conditions are met. The rule provides:
(f) Compensation by Third Party. A lawyer shall not accept
compensation for representing a client from one other than the client unless:

(1) the client consents after consultation;
(2) there is no interference with the lawyer’s independence of professional judgment or
with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by rule 41.6.
The comment to Rule 4-1.7 specifically addresses instances where a conflict arises
between insurer and insured. The comment, in pertinent part, states:
A lawyer may be paid from a source other than the client, if the client is
informed of that fact and consents and the arrangement does not compromise the
lawyer’s duty of loyalty to the client. See rule 4-1.8(f). For example, when an
insurer and its insured have conflicting interests in a matter arising from a liability
insurance agreement and the insurer is required to provide special counsel for the
insured, the arrangement should assure the special counsel’s professional
independence. [Emphasis added.]
As indicated, an attorney who undertakes representation when being compensated by a
third party must ensure that his or her independent professional judgment is not affected by the
fact that someone other than the client is paying the attorney’s fees. In other words, the attorney
should make a division between economic interests and professional loyalties.
Although the interests of the third party paying the attorney’s fees and the interests of the
attorney’s client often are aligned, there also are times when the interests diverge -- such as when
a dispute arises over insurance coverage. If the divergence in interests would adversely affect
the attorney’s representation of the client insured, the attorney must withdraw from the
representation. Florida Ethics Opinion 70-58. See also Rule 4-1.7(b) and Rule 4-5.4(d).
This Committee has previously published an advisory opinion addressing a situation in
which an attorney who was hired by an insurance company to represent an insured was
instructed by the insurer to withhold any opinion as to the settlement value of the case from the
insured client. The Committee advised the attorney to seek to have the insurer voluntarily
remove the restraint and, if that attempt was unsuccessful, to withdraw from the representation.
Florida Ethics Opinion 81-5.
It is the opinion of the Committee that the attorney in the instant inquiry should follow
the guidance provided in our earlier opinions. As long as the representation continues, the
attorney’s primary duty is to the insured. The duty of communication to the insured also
continues as long as the representation continues. Once the insured is informed and with the
insured’s consent, the inquiring attorney should inform the insurer that, when he has been
retained to represent an insured, he may only act in the best interests of the insured and,
accordingly, the attorney should ask the insurer to withdraw its request that he file a motion for
partial summary judgment. If the insurer refuses, the attorney should advise the insured of the
circumstances surrounding the controversy and act only in the best interests of the insured. The
attorney’s ability to continue in the representation will be dependent upon whether he can
comply with the requirements of Rules 4-1.8(f), 4-1.7(b), and 4-5.4(d), as previously discussed.