After an insurer pays a judgment for the plaintiff and takes an assignment, can the insurer's lawyer appear for that plaintiff as appellee in the co-defendant's appeal?

Plain-English summary

Plaintiff X won a personal-injury judgment against two defendants, A and B, each defended by separate counsel engaged by a different liability carrier. Defendant A appealed without posting a supersedeas bond; defendant B did not appeal. To collect, X began garnishment proceedings against both carriers. B's carrier discharged its trial counsel, retained substitute counsel who appeared for B in the garnishment, then paid X the full amount of the judgment and took an assignment from X. Substitute counsel for B then appeared in the appeal as counsel for the appellee, X. The inquiry asked whether that representation was ethical.

The committee found no ethical objection. It reasoned that no conflict of interest was apparent so long as X was fully protected and there was no possibility the settlement between B and X would be set aside. On the stated facts, X was fully protected and was a party to the appeal in name only, with B's insurance company now the real party in interest opposing appellant A. The committee added that the earlier sharing of work product between the co-defendants in the trial court was moot on appeal, since the parties were bound by the trial-court record.

Currency note

This opinion was issued in 1966, 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. Conflicts of this kind are 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 Treat this page as historical context, not current guidance.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: Why was there no conflict in the lawyer switching from defending B to representing plaintiff X?

A: The committee said no conflict was apparent so long as X was fully protected and there was no possibility the settlement between B and X would be set aside; on the facts, the insurer had become the real party in interest and X was a party in name only.

Q: Did the co-defendants' earlier sharing of work product create a problem on appeal?

A: No. The committee said that issue was moot on appeal because the parties were bound by the record made in the trial court.

Background and rules framework

The opinion applied the former Canon 6, which addressed adverse and conflicting interests. The concern is now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). The committee's analysis turned on the realignment of interests after the insurer paid the judgment and took an assignment, leaving the insurer, not the nominal plaintiff, as the party whose interests counsel actually advanced.

Citations and references

Rules of Professional Conduct:

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

See also

• FL Bar Ethics Op. 70-58: Insurer-Paid Counsel and a Coverage Conflict
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-7.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-7
February 15, 1966
Advisory ethics opinions are not binding.
Where a personal injury plaintiff obtains a judgment against codefendants A and B, and the insurance company for B pays the full amount of the judgment and takes an assignment from the plaintiff, there is no ethical objection to the insurance company's attorney appearing for the plaintiff in the appeal brought by A.
Canon: 6
Vice Chairman Clarkson stated the opinion of the committee:
A member of The Florida Bar has requested the Committee's advice on the question posed below.
Plaintiff "X" brought an action based upon personal injuries sustained in an automobile accident. He charged negligence against the operators of two defendant vehicles, "A" and "B". Judgment sought was joint or several. Separate trial counsel appeared for the two defendants, each being engaged by a different liability insurance carrier. Upon trial, the jury returned a verdict for plaintiff "X" against both defendants.
After entry of judgment, counsel for defendant "A" perfected an appeal but did not post supersedeas bond. Counsel for defendant "B" did not appeal from the joint judgment. To enforce collection of the judgment, plaintiff "X" instituted garnishment proceedings against "A's" insurance company and "B's" insurance company during the pendency of the appellate proceedings involving only "X" and "A".
"B's" insurance company discharged its trial counsel and retained substitute counsel, who filed an appearance in behalf of "B" in the garnishment proceedings. Thereafter, "B's" insurance company paid "X" the full amount of the judgment and took an assignment from "X". Substitute counsel for "B" then filed an appearance in the appellate proceedings as counsel for the appellee, "X."
Based upon the foregoing posture of the litigation, the inquiry is whether substitute counsel for "B" can ethically represent "X", the original plaintiff, as the appellee in the appellate proceedings in behalf of "B's" insurance company. It is noted in the inquiry, parenthetically, that in the trial court the co-defendants, "A" and "B", shared their work product and cooperated fully with each other on questions of damages and on certain aspects of liability where the co-defendants were not in conflict.
The Committee finds no ethical objection to the appearance of substitute counsel for "B" as attorney for the appellee in the appellate proceeding. No conflict of interest is apparent so long as "X" is fully protected and there is no possibility that the settlement arrangement between "B" and "X" will be set aside. The facts as stated indicate that "X" is fully protected and that he is a

party to the appeal in name only, "B's" insurance company now being the real party in interest in opposition to appellant "A".
The corollary problem involving the sharing of work product in the lower court by the co-defendants appears to be moot on appeal since the parties are bound by the record made in the trial court.