Can a lawyer take on clients who want new counsel for a dispute arising out of an earlier settlement handled by their prior lawyer, over that prior lawyer's objection?

Plain-English summary

Clients had used other counsel to compromise controversies in the early stages of a sizeable decedent's estate, and the settlement resulted in that counsel becoming the personal representative completing the estate. Later developments produced a possible conflict of interest between the clients and that attorney in his capacity as administrator, and raised questions about the earlier settlement. The clients asked the inquiring lawyer to represent them in the new controversy, including any dispute with former counsel. Former counsel, having been fully compensated under his earlier employment agreement, offered to furnish the clients other counsel at his own expense, and the inquirer was unsure whether he could properly take the representation, especially if that offer amounted to an objection to him.

The committee said Canon 7 clearly preserved a client's right to secure additional or substitute counsel and supported a lawyer's right to assume such representation. It concluded that if existing counsel objected to the proffer of additional counsel, the attorney could accept the retainer upon the client's relief of the existing counsel, and it saw no reason the inquirer could not properly honor the clients' desire for independent counsel. The committee expressed no opinion on the actions or proposed actions of any counsel other than the inquirer.

Currency note

This opinion was issued in July 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 7. A client's right to discharge a lawyer and the handling of the transition between lawyers are now addressed by Rule 4-1.16 of the Rules Regulating The Florida Bar (Model Rule 1.16), with related conflict questions under Rules 4-1.7 and 4-1.9. 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 Treat this page as historical context, not current guidance.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: Could the lawyer accept the clients who wanted to switch counsel?

A: Yes. The committee said Canon 7 preserved the client's right to secure additional or substitute counsel and supported the lawyer's right to assume the representation.

Q: Did it matter that prior counsel objected and offered to supply other counsel at his own expense?

A: The committee said that if existing counsel objected, the attorney could accept the retainer upon the client's relief of the existing counsel, and saw no reason the inquirer could not honor the clients' desire for independent counsel.

Q: Did the committee address prior counsel's conduct?

A: No. It expressly expressed no opinion as to the actions or proposed actions of any counsel other than the inquirer.

Background and rules framework

The opinion applied the former Canon 7, which addressed a client's right to additional or substitute counsel and a lawyer's ability to take on such representation. Today the client's right to discharge counsel is reflected in Rule 4-1.16 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.16. The committee flagged a possible conflict between the clients and their former counsel in his role as administrator but limited its holding to the inquirer's ability to accept the representation.

Citations and references

Rules of Professional Conduct:

• Canon 7 [Canons of Professional Ethics; see current Rule 4-1.16]

See also

• FL Bar Ethics Op. 66-60: Enforcing a Noncompete Drafted
• FL Bar Ethics Op. 67-16: Former Client, New Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-39/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-39.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-39
July 18, 1966
Advisory ethics opinions are not binding.
An attorney could properly honor a client's request to represent him in a controversy stemming from a previous compromise wherein the client was represented by other counsel.
Canon: 7
Chairman MacDonald stated the opinion of the committee:
An intricate factual situation involving the proposed action of a member of The Florida Bar is here presented. The clients in question utilized other counsel to compromise controversies arising in the preliminary stages of a sizeable decedent's estate. The settlement resulted in such counsel assuming the role of personal representative in completing the estate. Subsequent developments in the matters previously settled result in a possible conflict of interest between the clients and the attorney in his capacity as administrator, and raise questions as to efficacy and desirability of the previous settlement. The clients now request the inquirer to represent them in connection with the new controversy, including any dispute with former counsel. The latter, by virtue of the former employment agreement under which he has been fully compensated, offers to afford the clients other counsel at his expense. The inquirer is in doubt as the propriety of assuming this representation, particularly if the proposal of former counsel is in effect an objection to him so acting.
Canon 7 clearly preserves the right of a client to secure additional or substitute counsel, and supports the right of a lawyer to assume such representation. In the event of an objection by existing counsel to the proffer of additional counsel, an attorney may accept the retainer upon the client's relief of the existing counsel. We see no reason why the inquirer may not properly honor the clients' desire for independent counsel.
We express no opinion as to the actions or proposed actions of any counsel other than the inquirer.