Professional Ethics Committee adopts proposed advisory opinion regarding representation of Department of Revenue in child support cases.  [Added 9/30/11]

    At its meeting in Orlando on September 21, the Florida Bar Professional Ethics Committee voted to take action on several items of interest to Florida lawyers including the following.

    The Committee voted to publish for comment Proposed Advisory Opinion ("PAO") 11-1.  PAO 11-1 was adopted in response to an inquiry from the Eleventh Judicial Circuit State Attorney's Office.  By state law state Florida Department of Revenue ("DOR")  is responsible for administering the Title IV-D child-support program in Florida.  The state attorney's office represents DOR.  The law requires DOR to review child support obligations to determine whether the amounts remain consistent with current support guidelines and to seek adjustments when appropriate.  In carrying out these duties DOR may find itself seeking to enforce a child support obligation against a non-custodial parent and later seeking a reduction of the same support order on that non-custodial parent’s behalf.  Fla.Stat. sec. 409.2564(5) provides that "[a]n attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases."

    Former Florida Ethics Opinion 92-2 had concluded that, despite section 409.2564(5), "it would be unethical for an attorney who has received confidential information from one parent to later act adversely to that parent in a matter involving that confidential information "  In response to the inquiry from the State Attorney's Office, the Committee withdrew Opinion 92-2 at its June 2011 meeting.  PAO 11-1 was adopted to replace the withdrawn opinion.  PAO 11-1 referenced Department of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010), and concludes:  "Because the parent as a matter of law is not a client of the lawyer representing DOR, that lawyer owes the parent none of the ethical obligations that are premised on the existence of a lawyer-client relationship, including the obligations of loyalty and confidentiality.  Accordingly, there are no ethical limitations on the lawyer’s representing DOR in its (DOR’s) providing services to a parent, regardless of a prior representation in which the services were provided to the other parent."  In PAO 11-1 the Committee acknowledged the existence of Fla.Stat. sec. 90.502(5) but stated that "[a]lthough the Committee believes that this provision does not in itself create a lawyer-client relationship between the lawyer and the recipient of DOR’s services, its impact is a legal question beyond the scope of an ethics opinion."

    PAO 11-1 will be published in the Florida Bar News along with a notice inviting any interested Bar members to file comments for consideration by the Committee at its next meeting.  See Rule 4(d), Florida Bar Procedures for Ruling on Questions of Ethics.

    Watch sunEthics.com for updates.

Court should not have disqualified lawyer despite unusual conflict of interest on the part of person who hired him.  [Added 8/16/11]

    Razin and Bahl were managing members of A Milestone, LLC ("Milestone").  They had a falling out.  Razin sued Milestone to collect monies allegedly due him.  Razin hired attorney Norman to represent Milestone in the collection action.  Bahl, however, hired attorney McDermott to represent Milestone.  Each attorney moved to disqualify the other.  The trial court disqualified both attorneys and appointed a custodian to represent Milestone.

    On appeal, the Second DCA reversed the order disqualifying Norman and affirmed the order disqualifying McDermott.  The court noted that Milestone's operating agreement "clearly indicates that as long as the Razin loan remains outstanding, Razin had controlling authority over any decision affecting Milestone in the event of a disagreement.  . . .  Because there is no dispute that Razin is a manager and that the loan is outstanding, we believe that the parties to the operating agreement – Razin and Bahl – remain bound by it."  Unlike the trial court, the appeals court did not base its decision on the alleged conflict of interest under which Razin was operating.  "[T]he trial court noted that it was troubled by what appeared to be Razin's conflict of interest in retaining counsel to represent Milestone in defense of Razin's collection action.  But even though this scenario does not appear to be an arm's length transaction, the fact remains that Bahl agreed to the inclusion of article VII, section 1 [of the operating agreement], in return for Razin's $1,000,000 loan.  Parties are free to waive any potential conflicts of interest, see Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148, 150 (Fla. 5th DCA 2005) (noting that shareholders of corporation had expressly waived any conflicts of interest from law firm representing corporation and individual shareholders), and we are powerless to rewrite the agreement in order to make it more reasonable for Bahl."

    The appellate court also concluded that "there is nothing in our record to suggest that Norman was representing Milestone in name only and instead actually working to protect Razin's interests."  In a footnote, the court referred to the applicable attorney-client relationship principles:  "In fact, because Norman was hired to represent Milestone, he had no duty to either Razin or Bahl individually; Norman's duty ran only to Milestone.  See Rudolf, 901 So. 2d at 150, 150 n.4 (discussing comments to Florida Rule of Professional Conduct 4-1.13 which provide that when a lawyer represents an organization, the entity is the client, not the constituents of the organization)."  Razin v. A Milestone, LLC, 67 So.3d 391 (Fla. 2d DCA 2011).

Florida Supreme Court suspends lawyer for providing improper financial assistance to client.  [Added 6/28/11]  --  Florida Bar v. Patrick, 67 So.3d 1009 (Fla. 2011).

Trial court erred by failing to hold evidentiary hearing before concluding that no attorney-client relationship had been established.  [Added 6/12/09]  --  Powell v. Solowsky, 14 So.3d 1064 (Fla. 3d DCA 2009).