When an associate who worked on the employer-carrier's side switches to the claimant's firm, can that firm keep representing the claimant?

Plain-English summary

In a controverted workmen's compensation matter, attorney B of firm A & B represented the claimant, and associate E of firm C & D represented the employer and carrier. B and E had discussed their clients' positions, with a controversy over the claimant's degree of disability. Before the case closed, E left C & D and became an associate of A & B. The question was whether A & B could continue to represent the claimant, assuming E would not participate further and would not reveal information he had gained representing the employer-carrier.

A majority of the committee believed that A & B should withdraw from further handling of the claim unless both the adverse party and A & B's own client, after being fully informed of the facts, consented to the continued representation. The committee assumed at the outset that it could opine only on the inquiring lawyer's own proposed conduct, not on another attorney's.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on adverse and conflicting interests. Duties to a former client are now governed by Rule 4-1.9 of the Rules Regulating The Florida Bar, and imputation of a conflict within a firm by Rule 4-1.10 (Model Rules 1.9 and 1.10), which now provide for screening in some circumstances that this opinion did not address. 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 Treat this page as historical context, not current guidance.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 the claimant's firm keep the case after hiring the other side's associate?

A: A majority said the firm should withdraw unless both the adverse party and the firm's own client, after being fully informed, consent to the continued representation.

Q: Did it matter that the new associate would take no further part and reveal nothing?

A: The committee still required the consent of both parties despite that assumption, treating the conflict as attaching to the firm.

Background and rules framework

The opinion applied the former Canon 6 on adverse and conflicting interests, together with the principle that one lawyer's disqualification reaches the firm. Those subjects are now Rule 4-1.9 (former clients) and Rule 4-1.10 (imputation) of the Rules Regulating The Florida Bar; the Model Rule analogues are Rules 1.9 and 1.10. The Florida Bar's later Opinion 66-22 relied on this opinion in a closely related fact pattern.

Citations and references

Rules of Professional Conduct:

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

See also

• FL Bar Ethics Op. 66-22: Firm Conflict When the Opposing Lawyer Joins
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-46/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-46.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-46
August 19, 1965
Advisory ethics opinions are not binding.
When an associate who has participated substantially in a law firm's representation of the employer-carrier in a controverted workmen's compensation matter leaves the firm to join the law firm representing the claimant, the second firm should withdraw from further handling of the claim unless both the employer-carrier and the claimant, after being fully informed of the facts, consent to the continued representation.
Canon: 6
Chairman Kittleson stated the opinion of the committee:
We assume that this inquiry falls within the policy of the Board of Governors that the Committee may render opinions only on matters pertaining to the inquiring lawyer's own proposed conduct. We are not authorized to advise the inquiring attorney concerning the conduct of another attorney.
B of law firm A & B represents a workmen's compensation claimant. E, an associate in law firm C & D, represents the employer and carrier in the same matter. The opposing attorneys, B and E, have discussed the positions of their respective clients; there is a controversy as to the claimant's degree of disability. Before the case is closed, E leaves the employ of C & D and becomes an associate of A & B. The question is: can law firm A & B continue to represent the claimant, assuming that E will not participate further in the matter, and will not reveal any information that he gained in his representation of the employer-carrier?
A majority of the Committee believes that A & B should withdraw from further handling of the claim unless both the adverse party and A & B's client, after being fully informed of the facts, consent to the continued representation.