Can a corporation's lawyer who drafted a noncompete between the company and its president, while nominally representing both, later sue to enforce that noncompete for the company?

Plain-English summary

A lawyer represented a corporation on a retainer basis. About a year before the inquiry, the corporation refinanced and took on additional investment, and in the course of that work the lawyer drafted an agreement between the corporation and the man who was then its president, containing a noncompetition covenant. The lawyer understood he was nominally representing both the individual and the corporation, but in fact merely formalized an understanding already reached between them, and he learned nothing of a confidential nature from the individual. He was now asked to enforce the noncompete by suit for injunction, and the operative facts of the alleged violation would not involve events that might have come to his knowledge when he prepared the agreement.

In those circumstances the committee saw no objection to the lawyer proceeding on the corporation's behalf to enforce the agreement. It left one caveat: it had not considered, and did not understand there to be, a problem under Canon 19 (lawyer as witness), and therefore did not comment on the effect of that canon in the situation.

Currency note

This opinion was issued in November 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on conflicting interests. Conflicts involving a former client, including a former joint client, are now governed by Rule 4-1.9 of the Rules Regulating The Florida Bar, and concurrent conflicts by Rule 4-1.7 (Model Rules 1.9 and 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 Treat this page as historical context, not current guidance.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: Could the lawyer enforce the noncompete for the company against the former president?

A: Yes, in the circumstances described. The committee saw no objection to the lawyer proceeding on the corporation's behalf to procure enforcement of the noncompetition agreement.

Q: What conditions did the committee rely on?

A: That the lawyer had learned nothing of a confidential nature from the individual when drafting the agreement, and that the operative facts of the alleged violation would not involve events that came to his knowledge at the time of preparation.

Q: Did the committee resolve every issue?

A: No. It added a caveat that it had not considered and did not comment on whether Canon 19, on a lawyer testifying, might apply.

Background and rules framework

The opinion applied the former Canon 6, which governed representing conflicting interests. Duties to a former client, including a former joint client, are now addressed by Rule 4-1.9 of the Rules Regulating The Florida Bar, with concurrent conflicts under Rule 4-1.7; the Model Rule analogues are Rules 1.9 and 1.7. The committee's analysis turned on the absence of confidential information from the individual and the unrelated nature of the facts underlying the enforcement suit.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.9 and 4-1.7]

Other opinions cited:

• ABA Informal Opinion 218

See also

• FL Bar Ethics Op. 67-16: Former Client, New Matter
• FL Bar Ethics Op. 68-16: Suing a Former Client
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-60/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-60.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-60
November 7, 1966
Advisory ethics opinions are not binding.
A corporation's attorney who acted for both the corporation and its president in drafting a noncompetitive agreement formalizing the understanding already reached by them may later represent the corporation in proceedings to enforce the agreement. This assumes that nothing of a confidential nature was learned by the attorney from the president and that the operative facts surrounding the alleged violation of the agreement will not involve events that might have come to the knowledge of counsel at the time of the preparation of the agreement.
Canon: 6
Opinion: ABA Informal 218
Chairman MacDonald stated the opinion of the committee:
Several years ago, a member of The Florida Bar was engaged to represent a corporation on a retainer basis. Approximately one year ago corporate operations required a refinancing and additional investment in the corporation. In the course of performing the various legal services incident to this development, the attorney drafted an agreement between an individual, who at that time was the president of the corporation, and the corporation containing, inter alia, a non-competitive covenant. Although the attorney at the time understood that he was nominally representing both the individual and the corporation he in fact merely acted for all concerned in formalizing an understanding already reached between the individual concerned and the corporation. In particular, nothing of a confidential nature was learned from the individual. The attorney has now been requested to enforce the non-competitive agreement by suit for injunction, and inquires of us as to the propriety of such representation on his part. Apparently, the operative facts surrounding the alleged violation of the non-competitive agreement will not involve events which might have come to the knowledge of counsel at the time of the preparation of the agreement.
In the present situation and circumstances enumerated, we see no objection to the attorney proceeding on behalf of the corporation to procure enforcement of the non-competitive agreement. We do, however, leave one caveat. We have not considered, and do not understand, that there is a problem which might invoke the provisions of Canon 19. We therefore do not comment upon the effect of that canon in this situation.