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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Florida Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Florida Rule

¥ Primary Florida References: FL Rule 4-1.9
¥ Background References: ABA Model Rule 1.9, Other Jurisdictions
¥ Commentary:

1.9:101      Model Rule Comparison

The Florida Rule has not been modified to reflect the 1989 amendments to MR 1.9 & 1.10, in which the text of former MR 1.10(b) was moved to MR 1.9(b), and former MR 1.9(b) was renumbered as MR 1.9(c). The Florida Rule also omits MR 1.9(c)(2), forbidding the lawyer from revealing information relating to a former representation except as MR 1.6 or 3.3 would require or permit. The Florida Rule comment naturally omits those portions of the Comment to MR 1.9 reflecting the 1989 amendments. The Florida Rule comment retains the MR 1.9 comment language that information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client, but omits the language stating that such information may not subsequently be "revealed by the lawyer."

1.9:102      Model Code Comparison

FL Rule 4-1.9 has no counterpart in the Model Code.

1.9:200   Representation Adverse to Interest of Former Client--In General

¥ Primary Florida References: FL Rule 4-1.9(a)
¥ Background References: ABA Model Rule 1.9(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:201, ALI-LGL ¤ 132, Wolfram ¤ 7.4

FL Rule 4-1.9 is designed to prevent even the appearance that lawyers can switch sides. Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Auth., 593 So. 2d 1219 (Fla. 1st DCA 1992). It accomplishes this goal by requiring disqualification of a lawyer who: (1) has formerly represented the opposing party in the same or a similar case; or (2) is in a position to use confidential information against a former client. The rule is closely related to FL Rule 4-1.7, which deals with general conflicts of interest. In determining whether two clients' interests are adverse, courts should be guided by the principles of FL Rule 4-1.7. Comment, FL Rule 4-1.9. However, there are differences. First, FL Rule 4-1.9 applies to conflicts of interest between former and current clients, while FL Rule 4-1.7 applies to conflicts between existing clients. Second, and most significant, FL Rule 4-1.9 applies to fewer situations than does FL Rule 4-1.7. Florida Ins. Guar. Ass'n v. Carey Canada, Inc., 749 F. Supp. 255, 260 (S.D. Fla. 1990). FL Rule 4-1.9 prevents a lawyer from undertaking a representation only if it would be materially adverse to the interests of a former client in the same or a substantially related matter. FL Rule 4-1.7 operates to disqualify a lawyer whenever one client's interests are adverse to another, regardless of whether the matters are related. Client consent after full consultation can waive the prohibitions of FL Rule 4-1.9, unless the conflict is so damaging that even consent cannot waive the rule's provisions. See Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. 1st DCA 1995). Under the "hot potato rule," a lawyer cannot convert a current client into a former client after a conflict arises. Hilton v. Barnett Banks, Inc., 1994 WL 776971 (M.D. Fla. 1994). "A firm is per se ineligible to participate in an action if it has concurrently represented adverse interests at any point during the action." Id. (citing Florida Ins. Guar. Ass'n, Inc. v. Carey Canada, 749 F. Supp. 255, 261 (S.D. Fla. 1990)). In Carey Canada, the court state, "[C]lients who were concurrently represented at any point during the conflict are treated as concurrent clients for purposes of the disqualification motion."

1.9:210      "Substantial Relationship" Test

Much of the litigation surrounding FL Rule 4-1.9 has been over what constitutes a substantially related matter. Some situations are obvious, such as where a lawyer helps one client rescind a contract that the lawyer drafted for another client. Lane v. Sarfati, 676 So. 2d 475 (Fla. 3d DCA 1996)(lawyer who suggested revisions to form contract of theatrical agent could not act as attorney for clients of agent in breach of contract dispute). To show that the present and prior representations are substantially related, the moving party must "specifically demonstrat[e] the relationship between the subject matters, issues and causes of action of both the present and previous representations so that the court can determine whether a substantial relationship exists." Contant v. Kawasaki Motors Corp., 826 F. Supp. 427, 429 (M.D. Fla. 1993). "To be 'substantially related', [t]he matters need only be akin to the present action in a way reasonable persons would understand as important to the issues involved." Estate of Jones v. Beverly Health & Rehab. Servs., Inc., 68 F. Supp. 2d 1304, 1310 (N.D. Fla. 1999) (quoting In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. 1981))

The rule was violated when an attorney represented one client in a real estate deal, then later represented a bank attempting to foreclose on the same real estate. Campbell v. American Pioneer Sav. Bank, 565 So. 2d 417 (Fla. 4th DCA 1990). Another court held that an attorney who helped defend a motorcycle manufacturer in a product liability suit could not represent a client in a completely unrelated product liability suit against the manufacturer because the crashworthiness of motorcycles was an issue in both cases. Contant v. Kawasaki Motors Corp., 826 F. Supp. 427 (M.D. Fla. 1993).

It is not enough to show that the prior representation was close in time to the current matter. J.M. Lumber, Inc. v. M.L. Builders, Inc., 706 So. 2d 84 (Fla. 4th DCA 1998).

Courts have also found that adverse representation in only marginally related matters does not always violate FL Rule 4-1.9(a). See In re Servico, Inc., 149 B.R. 1009 (Bankr. S.D. Fla. 1993)(no violation where the attorney for two businesses opposing a debtorÕs Chapter 11 reorganization plan had previously represented the debtor in non-bankruptcy real estate transactions). In Smalley Transp. Co. v. Prime Computer, Inc., 137 F.R.D. 397 (M.D. Fla. 1991), the court found no conflict where the defendantÕs lawyer in a computer fraud lawsuit had previously consulted with the plaintiff about his computer system in an unrelated lawsuit. Although the lawyer had gained general information about the company, he had learned nothing about the plaintiffÕs computer operations that applied to the current action, thus the two actions were not substantially related. See also Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. 5th DCA 1979)(where affidavits established ground for removal of attorney on ground of prior representation of defendant in substantially similar matter, it was error to require defendant to present testimony of designer who allegedly gave confidential information to attorney in prior case; however, on remand plaintiff would be allowed to present counteraffidavits).

1.9:220      Material Adversity of Interest

[The discussion of this topic has not yet been written.]

1.9:230      Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]

Courts have in several instances engrafted onto FL Rule 4-1.9 the requirement of FL Rule 4-1.7 that lawyers not accept potentially conflicting employment. Campbell v. American Pioneer Sav. Bank, 565 So. 2d 417 (Fla. 4th DCA 1990)(disqualification mandated by the appearance of impropriety); Kenn Air Corp. v. Gainesville-Alachua County Reg'l Airport Auth., 593 So. 2d 1219 (Fla. 1st DCA 1992)(appearance of lawyer switching sides sufficient to trigger application of FL Rule 4-1.9). The Eleventh Circuit has stated that since the adoption of the Model Rules in Florida, the "appearance of impropriety" is not the standard for disqualifying a lawyer from representing a client. Ganobsek v. Performing Arts Center Authority, 2000 WL 390106 (S.D. Fla. 2000).

Courts have also had to decide what constitutes an attorney-client relationship for purposes of applying FL Rule 4-1.9, and have again adopted the standard of FL Rule 4-1.7 that the subjective view of the client should control whether an attorney-client relationship exists. McPartland v. ISI Inv. Servs., 890 F. Supp. 1029 (M.D. Fla. 1995)(client had subjective expectation that he was attorney's client when he consulted attorney about two employment documents that became subject of later lawsuit); Brotherhood Mut. Ins. Co. v. National Presto Indus., 846 F. Supp. 57, 59 (M.D. Fla. 1994)(it was reasonable for person to view lawyer who only worked on his lawsuit for a few hours as his attorney); Smalley Transp. Co. v. Prime Computer, Inc., 137 F.R.D. 397 (M.D. Fla. 1991)(client had reasonable belief that he was consulting attorney as client even though attorney believed he was acting in his capacity as a technical computer consultant). But see General Elec. Real Estate Corp. v. S.A. Weisberg, Inc., 605 So. 2d 955 (Fla. 4th DCA. 1992)(alleged client's subjective belief that lawyer-client relationship existed insufficient where facts are disputed; evidentiary hearing required to determine reasonableness of alleged client's belief).

1.9:300   Client of Lawyer's Former Firm

¥ Primary Florida References: FL Rule 4-1.10(b)
¥ Background References: ABA Model Rule 1.9(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤¤ 123, 124, 132, Wolfram ¤ 7.6

1.9:310      Removing Imputed Conflict of Migratory Lawyer

[See ¤ 1.10:200]

1.9:320      Former Government Lawyer or Officer

[See ¤ 1.11:200]

1.9:400   Use or Disclosure of Former Client's Confidences

¥ Primary Florida References: FL Rule 4-1.9(b)
¥ Background References: ABA Model Rule 1.9(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ , ALI-LGL ¤ 132, Wolfram ¤¤ 7.4

Courts frequently discipline or disqualify lawyers under FL Rule 4-1.9(b), which prevents lawyers from using confidential information about former clients to their disadvantage. Courts have consistently held that representation gives rise to an irrefutable presumption that confidences were disclosed, thereby preventing the lawyer from representing a client with interests materially adverse to those of the former client. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991); Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. 1st DCA 1995); University of Miami v. Dansky, 622 So. 2d 613 (Fla. 1st DCA 1993); Junger Util. & Paving Co. v. Myers, 578 So. 2d 1117 (Fla. 1st DCA 1989).

Courts have even found the existence of an attorney-client relationship and hence applied the presumption where the attorney gained confidential information in a role other than as an attorney. Tuazon v. Royal Caribbean Cruises, Ltd., 641 So. 2d 417 (Fla. 3d DCA 1994)(attorney acting as insurance claims adjustor subject to restraints of FL Rule 4-1.9). See also Garner v. Somberg, 672 So. 2d 852 (Fla. 3d DCA 1996), in which the presumption was applied to disqualify an attorney who only spoke to the prospective client by telephone and was never hired.

A case indicating the outer boundaries of the "irrefutable presumption" rule is Balda v. Sorchych, 616 So. 2d 1114 (Fla. 5th DCA 1993)(plaintiff's attorney in contract case not disqualified because of prior representation of defendant in divorce case, though the value of defendant's stock in corporation was at issue in both proceedings; value of stock held not confidential information). The Balda court found relevant the fact that defendant allowed the representation to continue for a period of three years before raising the question of a conflict, citing the rule that a motion to disqualify should be made with reasonable promptness after the party discovers the facts which would lead to the motion.