Can a lawyer represent a client in one lawsuit while opposing that same client as an adversary in a different, unrelated lawsuit?

Plain-English summary

A member, then a circuit judge, described three pending negligence actions involving one party, G.S. In two actions, G.S. was a defendant represented by lawyer A; in a third, unrelated action involving neither the same accident nor the same parties, G.S. was the plaintiff represented by lawyer B, while lawyer A appeared for the defense. The inquiry was whether lawyer A violated Canon 6 by representing G.S. in two actions while opposing G.S. in the third.

The committee stressed it could not pass on questions of law. It said Canon 6 was not strictly involved, because lawyer A did not represent G.S. in the third action and so was not representing conflicting interests in a single factual situation. Canon 37 could be involved if G.S. had imparted confidences to lawyer A that were relevant to the third action, in which case lawyer A could not defend the third action without violating Canon 37. Even apart from that, the committee unanimously concluded that lawyer A should either withdraw from representing G.S. in the first two actions or not defend the third, relying on the general provisions of Canons 32 and 37, which require a lawyer to avoid positions that may be misunderstood. Because lawyer A might have learned, in defending G.S., something of G.S.'s physical condition, driving ability, or other matters usable against him, the committee concluded that lawyer A should withdraw from the third action and that it would not be proper for him to withdraw from the first two actions and continue defending the third.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 32, and 37 of the Canons of Professional Ethics; conflicts of interest involving a current client are now governed by Rule 4-1.7, and the duty of confidentiality by Rule 4-1.6, of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.6). 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 Treat this page as historical context, not current guidance.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: Can a lawyer oppose his own current client in an unrelated case?

A: The committee said he should not. Even though strict Canon 6 conflicting-interest representation was not present, it unanimously concluded the lawyer should not both represent and oppose the same client across the matters.

Q: Which representation should the lawyer give up?

A: The committee concluded lawyer A should withdraw from the action in which he opposed his client (the third action), not from the two in which he represented the client, because he might have learned information usable against the client.

Q: What role did client confidences play?

A: Canon 37 could be directly violated if the client had given the lawyer confidences relevant to the opposing matter; even without that, the possibility that the lawyer had learned usable information drove the committee's conclusion.

Background and rules framework

The opinion applied former Canons 6 (conflicting interests), 32 (a lawyer's duty to avoid positions that may be misunderstood), and 37 (client confidences) of the Canons of Professional Ethics. Conflicts involving a current client are now governed by Rule 4-1.7 and confidentiality by Rule 4-1.6 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.6).

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rule 4-1.7]
• Canon 32, Canon 37 [Canons of Professional Ethics; positions to be avoided and client confidences; see current Rule 4-1.6]

See also

• FL Bar Ethics Op. 65-56: Shifting Sides After the Same Accident
• FL Bar Ethics Op. 65-46: Associate Switching Firms Mid-Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-13/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-13.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-13
April 5, 1965
Advisory ethics opinions are not binding.
The interests of the profession and the public are best served if a lawyer does not act as attorney for one person in a litigated matter while concurrently acting as attorney for the first client's adversary in another litigated matter, even though the matters are unrelated and even in the absence of pertinent confidential communications.
Canons: 6, 32, 37
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar who is presently a Circuit Judge states that three negligence actions are presently pending before a court in which one G.S. is a party. In two of the actions, G.S. is a party defendant and is represented by lawyer A. In the third action, which does not relate to the same accident or the same parties, G.S. is the plaintiff and is represented in that action by lawyer B. Lawyer A, however, has appeared on behalf of the defense in the third action. The facts, as stated, do not indicate which of the actions was first instituted. The inquiry is whether lawyer A is guilty of a violation of Canon 6 by virtue of his representing G.S. in two of the actions and opposing G.S. in the third action.
The Committee stresses at the outset that it is not authorized to, and does not attempt to, pass on matters of law or mixed questions of law and fact.
It is the opinion of the Committee that Canon 6 of the Canons of Professional Ethics is not involved merely because lawyer A does not represent G.S. in the third action. Thus he is not called upon to represent conflicting interests in a single factual situation and it does not appear that he has the duty of contending in a single situation that which his duty to another client requires him to oppose.
Canon 37 could be involved. That Canon requires that a lawyer preserve his client's confidences. If G.S. imparted to lawyer A any confidential communications in the actions in which G.S. is represented by lawyer A, and if such communications are in any way relevant or pertinent to the issues formed in the third action, then lawyer A obviously cannot defend the third action without violating Canon 37.
Despite the foregoing, it is the unanimous view of the Committee that lawyer A either should withdraw from the representation of G.S. in the first two actions or should not defend the third action which is brought by G.S. In arriving at this conclusion, the Committee relies upon general provisions of the Canons such as Canons 32 and 37, which in effect require that a lawyer should avoid positions which may be misunderstood and which would not be consistent with the highest duties and obligations of the profession.
Assuming that lawyer A, in the course of defending the third action against G.S., has not learned facts which would prevent an honest discharge of his duties in the first two actions, it is the view of the Committee that lawyer A should withdraw from the representation of the defendant in the third action. Quite possibly, in defending G.S. in the first two actions, lawyer A has learned something of the physical condition, driving ability or other pertinent matters, which might be used against G.S. in the third action. Such considerations persuade the Committee to the view expressed here. Because of the possibility of such knowledge, the Committee does not believe it would be proper for lawyer A to withdraw from either or both of the first two actions and continue to defend the third.