Can a lawyer or his firm be hired to attack the validity of a contract that the lawyer or one of his partners drafted?

Plain-English summary

The committee was asked whether a city attorney could represent the city in a case challenging the validity of a contract that his partner had drafted while the partner was city attorney. Drawing on ABA opinions, the committee stated the general rule that a lawyer may not accept employment to attack the validity of an instrument he drew for a client, or take a position on an instrument contrary to an opinion he had given construing it. It cited ABA Opinion 71, which held it improper for a city attorney who had worked to validate municipal bonds later to attack their validity, and ABA Opinion 64, which held that a change in the personnel of the city commission would not justify nullifying his own work.

The committee added, citing ABA Opinion 72, that the relationship among partners is such that neither the firm nor any member or associate may accept professional employment that any member of the firm could not properly accept. The committee also recorded a contrary view from one member, who felt it was not unethical for the lawyer to defend the cases against the city or to negotiate their settlement, even though his partner had thought the contracts valid while serving as city attorney.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canon 6 of the Canons of Professional Ethics; conflicts of interest, duties to former clients, and imputation of conflicts within a firm are now addressed by Rules 4-1.7, 4-1.9, and 4-1.10 of the Rules Regulating The Florida Bar (Model Rules 1.7, 1.9, and 1.10). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer be hired to challenge a contract he previously drafted?

A: As a general rule, no. The committee stated that a lawyer may not accept employment to attack the validity of an instrument he drew for a client, relying on ABA Opinions 64 and 71.

Q: Does the prohibition extend to the lawyer's partners and firm?

A: Yes. Citing ABA Opinion 72, the committee stated that neither the firm nor any member or associate may accept professional employment that any member of the firm could not properly accept.

Q: Did the committee reach a unanimous conclusion?

A: No. One member took the view that it was not unethical for the lawyer to defend the cases against the city or negotiate their settlement, even though his partner had considered the contracts valid while serving as city attorney.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics and relied on ABA Opinions 64, 71, and 72. Conflicts of interest, duties to former clients, and imputation of one lawyer's conflict to the firm are now addressed by Rules 4-1.7, 4-1.9, and 4-1.10 of the Rules Regulating The Florida Bar (Model Rules 1.7, 1.9, and 1.10). The committee's analysis turned on the impropriety of attacking one's own prior work and on the firm-wide reach of that disability.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.9, 4-1.10]

Other opinions cited:

• ABA Opinion 64: a change in the city commission's personnel does not justify attacking one's own prior work.
• ABA Opinion 71: a city attorney who worked to validate municipal bonds may not later attack their validity.
• ABA Opinion 72: neither a firm nor any member may accept employment any member could not accept.

See also

• FL Bar Ethics Op. 63-31: Assistant City Attorney Prosecuting a Partner's Former Client
• FL Bar Ethics Op. 60-12: A Partner Appearing Before a Client Public Body
• FL Bar Ethics Op. 66-53: County Attorney and Former Condemnation Landowner Clients

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-59-32/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-59-32-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 59-32
April 11, 1960
Advisory ethics opinions are not binding.
As a general rule, an attorney cannot properly accept employment to attack the validity of an instrument which he drew, and a law firm cannot properly accept any employment which one of its partners cannot properly accept.
Canon: 6
Opinions: ABA 64, 71, 72
Note: An inquiry was made as to whether a city attorney could properly represent the city in a case challenging the validity of a contract drafted by his partner at a time when the partner was city attorney.
Chairman Holcomb stated the opinion of the committee:
Opinions of the members of the Committee indicate that "A lawyer may not accept employment to attack the validity of an instrument which he drew for a client or accept employment to take a position with regard to an instrument contrary to an opinion which he has given construing it." Further, Opinion 71 of the American Bar Association Committee on Professional Ethics holds that it would be improper for a City Attorney, who had devoted himself and his professional efforts to validation of municipal bonds, thereafter to attack the validity of such bonds, even though instructed to do so by the City Commission, and Opinion 64 [holds that] the fact that the personnel of the City Commission has changed would not justify him in attempting to nullify his own work. Opinion 72 holds: "The relations of partners in a law firm are such that neither the firm, nor any member or associate thereof, may accept any professional employment which any member of the firm cannot properly accept."
Another member of the Committee feels that it is not unethical for the member to defend the cases against the City or negotiate settlement of them, even though his partner, while City Attorney, thought the contracts were valid and should be honored.