Can a lawyer who represented a crash victim's widow later represent one pilot against the other pilot and the plane owner?

Plain-English summary

A member's firm had concluded a lawsuit in which it represented the widow of a decedent killed in an airplane collision. That action was brought against the pilots of both planes and a corporation that owned both planes; the firm settled against the corporation, obtained a jury verdict against the pilot of plane A, and the pilot of plane B was apparently found not guilty. The firm had now been asked to represent the pilot of plane B in an action against the pilot of plane A and the owner of the planes.

The committee applied Canon 6, on adverse influences and conflicting interests, and quoted Drinker's test (whether the new retainer would require the lawyer to injure the former client in a matter in which the lawyer formerly represented him, or to use against the former client knowledge acquired through the former connection). The inquiring lawyer stated he could conceive of no claim being made against his former client and did not believe any confidential information from that client would be involved. The committee said that, while such cases are easily misunderstood by the public, there appeared to be no violation of Canon 6 under the circumstances, that it remained the lawyer's duty to apply the facts to the stated tests, and that it would be advisable to obtain the former client's consent after full disclosure before accepting the employment. One member felt the lawyer should not accept the employment without the full and complete consent of the former client.

Currency note

This opinion was issued in 1962, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; duties to former clients and conflicts of interest are now addressed by Rules 4-1.9 (duties to former clients) and 4-1.7 (conflict of interest, current clients) of the Rules Regulating The Florida Bar (Model Rules 1.9 and 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Was it a conflict to take the new pilot's case against the former client's adversaries?

A: The committee found no violation of Canon 6 on the facts, where no claim would be made against the former client (the widow) and no confidential information from her would be involved in the new litigation.

Q: What test did the committee apply?

A: The Drinker test: whether accepting the new retainer would require the lawyer to injure the former client in a matter in which he formerly represented her, or to use against her any knowledge acquired through the former connection.

Q: Did the committee require the former client's consent?

A: The majority advised obtaining the former client's consent after full disclosure. One committee member would have required the lawyer to obtain the former client's full and complete consent before accepting the employment.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics, on adverse influences and conflicting interests, as elaborated by Drinker, Legal Ethics, at page 105. Those duties are now addressed by Rules 4-1.9 and 4-1.7 of the Rules Regulating The Florida Bar (Model Rules 1.9 and 1.7). The committee's analysis turned on whether the new representation would injure the former client or draw on confidences from the prior matter.

Citations and references

Rules of Professional Conduct:

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

Other authorities:

• Drinker, Legal Ethics, p. 105

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-9-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-9
July 31, 1962
Advisory ethics opinions are not binding.
There appears to be no conflict of interest where counsel who had previously represented a widow of a decedent killed in a plane crash are asked to represent one pilot against the other pilot and the owner of the planes, but it would appear advisable to obtain the consent of former client after full disclosure.
Canon: 6
Vice-Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states that his firm recently concluded a law suit in which he represented the widow of a decedent who was killed in an airplane collision. In that action, suit was brought against the pilots of both planes and a corporation which owned both planes. The firm settled the case against the corporation and obtained a jury verdict against the pilot of plane "A." The pilot of plane "B" apparently was found not guilty. The firm has now been asked to represent the pilot of plane "B" in an action against the pilot of plane "A" and the owner of the planes.
Canon 6 of the Canons of Professional Ethics relates to adverse influences and conflicting interests. Drinker, Legal Ethics, in a discussion of this Canon states on page 105:
The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection.
In his letter, he states that he can conceive of no claim being made against his former client and does not believe that any confidential information received from that client will be involved in the litigation now contemplated. Cases like the one at hand are easily misunderstood by the public. However, there would appear to be no violation of Canon 6 under the circumstances related. It is his duty, however, to apply the facts in full to the tests above stated. It would appear advisable to obtain the consent of the former client, after a full disclosure of the facts, before accepting the employment contemplated.
One member of the Committee feels the member should not accept the employment unless he has the full and complete consent of his former client.