Rules Governing Conduct of Attorneys in Florida., In re, 38099
| Decision Date | 12 March 1969 |
| Docket Number | No. 38099,38099 |
| Citation | 220 So.2d 6 |
| Parties | In re Proposed Addition to the Additional RULES GOVERNING the CONDUCT OF ATTORNEYS IN FLORIDA. |
| Court | Florida Supreme Court |
Julian D. Clarkson, Fort Myers, Henry M. Kittleson, Bartow, and Thomas C. MacDonald, Jr., Tampa, for The Florida Bar, petitioner.
Raymond Ehrlich, Jacksonville, for Liberty Mutual Ins. Co.
Neal P. Rutledge, Miama, for Richard E. Hardwick.
Keen, O'Kelley & Spitz, A. Frank O'Kelley, Chas. H. Spitz, and Helen C. Ellis, Tallahassee, for American Insurance Association, American Mutual Ins. Alliance and National Association of Independent Insurers, as amici curiae.
The Florida Bar has petitioned the Court to approve an addition to the Rules Governing the Conduct of Attorneys in Florida to be designated Additional Rule 34, 32 F.S.A., as follows:
"An attorney employed in a master-servant or employer-employee relationship by a lay agency, such as a bank, savings and loan association, trust company or insurer, shall not render in the scope of his employment legal services on behalf of or in the name of customers, patrons or insureds of the lay agency unless it shall clearly appear that the sole financial interest and risk involved is that of the lay agency."
The obvious objective of the proposal is to restrict representation of individuals by so-called "house counsel." The announced motive of the Bar, which we accept, is to protect the public against the dangers of potentially duplicitous representation, albeit by those who do not intend a breach of the rules of ethics. As an illustration but certainly not comprehending the entire problem, the Bar advises that a primary source of concern is the practice of certain major insurance companies to maintain full time employed counsel who also represent policyholders. The problem occurs when a conflict develops between insurer and insured, such as when a claim exceeds policy coverage or when a compromise settlement is in the making. In such situations the Bar insists that the best interests of an insured require the service of independent counsel. They claim that the compulsive economic pressure of retaining one's full time means of livelihood precludes the possibility that a lawyer under such circumstances can give unadulterated devotion to divergent interests.
The rule, as suggested, seems to emphasize the employer-employee relationship as the element which would distinguish the lawyer's responsibility to one of two clients whose interests might develop conflicts. It appears to us that the ethical problem might well arise regardless of the nature of the employment relationship between the lay agency and the lawyer. That is to say, in resolving an ethical conflict between a lay agency and one of its customers it would not be material whether the lawyer is employed as the attorney for the lay agency on a full-time master-servant basis, or merely on an isolated attorney-client basis. The ultimate problem is the same. There may come a time when the lawyer must decide which of two "masters" he will continue to serve because the presence of a conflict makes it ethically impossible to serve both. Consequently, the proposed rule does not completely solve the problem which the Bar seeks to remedy. It merely discriminates against a class with no reasonable basis for the distinction.
We understand, of course, that there is a difference between lay agency and lawyer inter se when the employment is full time and salaried as contrasted to a particular case, special fee arrangement. The point we make merely is that when a conflict does arise the ethical decision which the lawyer faces is the same in both relationships--if he is employed to represent two clients. He simply cannot serve two masters in either situation.
When a lawyer undertakes the representation of a particular client he should be free to exercise completely unhampered professional judgment solely for that client. He should not be swayed directly or indirectly by his own interest or those of other...
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