Can a lawyer who is sometimes retained by an insurance company also represent third-party claimants pressing claims against that same company?

Plain-English summary

A member asked whether it is proper for an attorney who represents an insurance company from time to time to accept employment from a third party to press a claim against that company. In the inquiry, the carrier was also represented by other attorneys in the locality, both the third-party client and the carrier would be fully advised of the circumstances as soon as possible, and the deputy commissioner or court would be advised before any settlement was completed.

The committee said the inquiry was governed basically by Canon 6, under which it is unprofessional to represent conflicting interests except by consent given after a full disclosure of the facts. While Canon 6 would appear to authorize the representation, the committee concluded such representation should not be undertaken when the attorney is under a retainer from the insurance company. Even without a retainer, the attorney should not accept the representation if he had obtained, from either the claimant or the insurer, any information that might be used adversely to one of the parties. Where those conditions did not exist and Canon 6 was strictly observed, a majority believed the attorney could properly accept the employment, but should first consider whether his relationship with either party, including any expectation of future employment from the carrier, might limit his ability to represent the claimant fully and fairly. If any doubt remained, the committee said the representation should not be undertaken even with technical compliance with Canon 6.

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 Canon 6 of the Canons of Professional Ethics; conflicting-interest representation is now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 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 Treat this page as historical context, not current guidance.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: Can a lawyer on retainer to an insurer represent a third party suing that insurer?

A: No. The committee concluded such representation should not be undertaken while the attorney is under a retainer from the insurance company.

Q: What about a lawyer who is not on retainer to the insurer?

A: He should not accept the representation if he obtained information from the claimant or insurer that might be used adversely to one of the parties. Otherwise, with strict compliance with Canon 6, a majority believed he could accept it after weighing whether the relationship would impair the representation.

Q: Does an expectation of future work from the carrier matter?

A: Yes. The committee said the attorney should consider whether the expectation of future employment from the carrier might limit his ability to represent the claimant, and if any doubt remained the representation should not be undertaken.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics, which barred representing conflicting interests except by consent given after full disclosure. The representation of conflicting interests is now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rule 4-1.7]

See also

• FL Bar Ethics Op. 65-70: Insurer Counsel and an Excess Judgment
• FL Bar Ethics Op. 65-62: Direct Contact With Insurer Claims Representatives
• FL Bar Ethics Op. 66-7: Insurer Counsel for an Assignee-Plaintiff on Appeal
• FL Bar Ethics Op. 65-56: Shifting Sides After the Same Accident

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-41/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-41.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-41
June 21, 1965
Advisory ethics opinions are not binding.
A lawyer on retainer to an insurance company should not represent third-party claimants against the insurer. A lawyer not on retainer likewise should not represent third-party claimants if his relationship with the insurer would adversely affect the representation of the claimants or if he has obtained information from the insurer that could be used to the insurer's disadvantage in such representation.
Canon: 6
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar inquires if it is proper for an attorney who represents an insurance company from time to time to accept employment from a third party to press a claim against that company. He states that the carrier is also represented by other attorneys in the locality and that both the third party client and the insurance carrier are fully advised of the circumstances as soon as possible in the proceeding. Where settlement is ultimately effectuated, the deputy commissioner or court having jurisdiction over the matter will also be fully advised of the circumstances before settlement is completed.
The inquiry, of course, is governed basically by the provisions of Canon 6 of the Canons of Professional Ethics. There it is said that it is unprofessional for an attorney to represent conflicting interests except by consent of all concerned which is given after a full disclosure of the facts.
Canon 6 would appear to authorize the representation contemplated in the inquiry. However, it is the opinion of this Committee that such representation should not be undertaken when the attorney is under a retainer of the insurance company. Even in the absence of a retainer, the attorney should not accept such representation if he has obtained either from the claimant or insurance company any information which might be used adversely to one of the parties. Provided the aforementioned conditions do not exist, and provided further that the requirements of Canon 6 are strictly adhered to, a majority of the Committee believes the attorney may properly accept the employment. Before doing so, however, the attorney should carefully consider whether his relationship with either of the parties will affect his ability to represent the claimant fully and fairly. In particular, consideration should be given to whether the expectation of future employment from the insurance carrier might limit or restrict the attorney's ability to represent the claimant in the pending matter. If there is any doubt in the premises whatsoever, the Committee believes that the representation should not be undertaken even if there is technical compliance with the provisions of Canon 6.