When the lawyer in a personal injury case is in possession of settlement funds against which third persons claim an interest, there is no bright line rule that can address all situations. An attorney cannot assist a client in unlawfully avoiding statutory liens or court orders involving the funds. If the lawyer is a party to the agreement giving rise to the claim, the lawyer must comply with the lawyer’s agreement. If the client is a party to the agreement, the personal injury lawyer must consider the terms of the agreement, whether the agreement is enforceable, and whether the client wants to contest the agreement. The lawyer may assist the client by providing advice as to the client’s rights and obligations and by negotiating with the third party on behalf of the client. If the lawyer owes a legal duty to the third person, the lawyer must inform the third person of the lawyer’s receipt of the funds and must hold disputed funds in trust. Whether the lawyer owes a legal duty to protect the third person’s interests is a legal question, outside the scope of an ethics opinion. Before taking action that is adverse to the client, the lawyer should give the client the opportunity to seek independent legal advice.

Note: This opinion was approved by The Florida Bar Board of Governors on April 2, 2004.

PROFESSIONAL ETHICS OF THE FLORIDA BAR -- full opinion