sunEthics

Conflict rule governing concurrent representation of clients (RPC 4-1.7) does not permit analysis of whether conflict is "material."  [Added 1/14/10]

    Claimant filed petitions for workers' compensation benefits against both Lincoln/Guarantee and Wentworth/Summit.  Each denied responsibility, with Lincoln/Guarantee alleging that Claimant was a borrowed servant of Wentworth and Wentworth/Summit alleging that Claimant was an employee of Lincoln.  Law Firm represented Wentworth/Summit.  About two months before the final hearing, Guarantee retained Law Firm "to participate in an audit of Lincoln to determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln."  When Lincoln/Guarantee's lawyer learned that Law Firm was representing Guarantee, he moved to disqualify Law Firm from representing Wentworth/Summit in the workers' compensation case.  The Judge of Compensation Claims ("JCC") denied the motion, ruling that there was no material conflict.  Lincoln/Guarantee petitioned the First DCA for a writ of certiorari.

    The First DCA granted the petition and vacated the order denying disqualification.  "Rule Regulating the Florida Bar 4-1.7 forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record.  To disqualify a law firm from concurrently representing a  party whose interests are adverse, a client need only show that an attorney/client relationship exists."  Law Firm conceded that it represented both Lincoln/Guarantee and Wentworth/Summit at the same time.  "[T]he JCC erred in finding that the conflict had to be material.  Rule 4-1.7 leaves no room for a 'materiality' analysis.  When [Law Firm] failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify."

    The appellate court quoted the explanation of Fifth DCA in Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004), that Rule 4-1.7 is "based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship.  . . .  Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession."  Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., __ So.3d ___ (Fla. 1st DCA, No. 1D09-2268, 1/12/2010).

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University's Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2009