Is it ethical for a lawyer to sue the partners and associates of a law firm that guaranteed payment of a mortgage sold to the lawyer's client?

Plain-English summary

A member represented the owner and holder of a second mortgage that was in default. The mortgage had been sold to the client by a law firm. A partner in that firm had written the client a letter, at or about the time of purchase, stating that "the undersigned law firm" would guarantee payment of the mortgage or reimburse the client in the event of default. The firm's letterhead showed two partners and four associates at the time. One of the associates, now with another firm, questioned the ethical propriety of a lawyer bringing suit against him to enforce the alleged guaranty.

A majority of the committee felt it would not be unethical to proceed against the partners or associates of the firm. The committee expressed no formal opinion on the legal liability of the associates or former associates, and some members entertained grave doubt about their liability. The committee directed attention to Canon 30 and also to Canon 31, which places on the lawyer the responsibility for bringing questionable suits. One member felt the associate was so clearly not liable that proceeding against him would violate Canon 31.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 30 and 31 of the Canons of Professional Ethics, which addressed the lawyer's responsibility for the suits brought; that subject is now governed by Rule 4-3.1 (meritorious claims and contentions) of the Rules Regulating The Florida Bar (Model Rule 3.1). 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 Treat this page as historical context, not current guidance.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 ethical to sue the lawyers personally on the guaranty?

A: A majority of the committee found it not unethical to proceed against the partners or associates of the firm that signed the guaranty.

Q: Did the committee decide whether the associates were actually liable?

A: No. It expressly declined to express any opinion on legal liability, and some members doubted the associates were liable at all.

Q: Was there any limit on bringing the suit?

A: The committee pointed to Canon 31, under which the lawyer is responsible for bringing questionable suits; one member believed the associate was so clearly not liable that suing him would itself violate Canon 31.

Background and rules framework

The opinion applied former Canons 30 and 31 of the Canons of Professional Ethics. Canon 30 addressed declining suits the lawyer believes are unjust, and Canon 31 placed on the lawyer the responsibility for the litigation he brings. Those concerns are now addressed by Rule 4-3.1 (meritorious claims and contentions) of the Rules Regulating The Florida Bar (Model Rule 3.1). The committee separated the ethics question (whether the suit may be brought) from the merits question (whether the defendants are liable), answering only the former.

Citations and references

Rules of Professional Conduct:

• Canons 30, 31 [Canons of Professional Ethics; responsibility for the suits brought; see current Rule 4-3.1]

See also

• FL Bar Ethics Op. 71-38: Improper Subpoena as Litigation Pressure

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-21/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-21.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-21
May 7, 1964
Advisory ethics opinions are not binding.
It is not unethical for an attorney to proceed on behalf of a client against the partners or associates of a law firm that guaranteed payment of a mortgage.
Canons: 30, 31
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar represents the owner and holder of a second mortgage which is in default. The mortgage was sold to his client by a law firm. A partner in that firm wrote the client a letter at or about the time of purchase and stated that "the undersigned law firm" would guarantee payment of the mortgage or reimburse the client in the event of default. The letterhead of the firm indicates it was composed at the time of two partners and four associates. One of the associates, now with another firm, has questioned the ethical propriety of a lawyer bringing suit against him to enforce the alleged agreement of guaranty.
A majority of this Committee feels that it would not be unethical to proceed against the partners or associates of the firm in question. We express no formal opinion, however, as to legal liability of the associates or former associates of the firm involved. Some members of this Committee, in fact, entertain grave doubt as to the liability of the associates.
Attention is directed not only to Canon 30, which has been cited, but also to Canon 31. There it is stated that the responsibility for bringing questionable suits is the lawyer's responsibility. One member of this Committee feels that the associate in question so clearly is not liable that it would be a violation of Canon 31 to proceed against him.