Can a former assistant U.S. attorney defend a criminal case that was pending while he was in that office if he never worked on it?

Plain-English summary

A member who had recently resigned as an assistant U.S. district attorney asked whether his prior service would prevent him from acting as counsel in a criminal matter that was pending during his time in that office, but about which he was never contacted and to which he had neither access nor knowledge of the files.

The committee believed there was no violation of the Canons of Ethics in the matter, and that he was justified in continuing his representation of the defendant in the criminal case.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; the duties of a lawyer who has formerly served as a public officer or government employee are now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rule 1.11), which turns on whether the lawyer participated personally and substantially in the matter. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does prior government service bar a lawyer from later defending a case from that period?

A: Not automatically. The committee found no violation where the former assistant U.S. district attorney never handled the case, was never contacted about it, and had no access to or knowledge of the files.

Q: What fact was central to the committee's conclusion?

A: That the lawyer had no involvement in the case during his term, including no access to and no knowledge of the files, which is why the committee found his continued representation of the defendant justified.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics. The successive conflict that can arise when a lawyer leaves government service is now governed by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rule 1.11), which restricts representation in matters in which the lawyer participated personally and substantially as a public officer or employee.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rule 4-1.11]

See also

• FL Bar Ethics Op. 66-1: Prosecutor's Partner and Defense
• FL Bar Ethics Op. 63-31: Prosecuting a Partner's Ex-Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-58/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-58-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 62-58
March 6, 1963
Advisory ethics opinions are not binding.
It is proper for a former assistant U.S. district attorney to participate in the defense of a criminal action that was pending during his term of office when he had no knowledge of the case and no access to the files.
Canon: 6
Chairman Holcomb stated the opinion of the committee:
This Committee has a request for an opinion from a member of The Florida Bar, as to whether his prior service as an Assistant U.S. District Attorney, from which he recently resigned, would prevent him from acting as counsel in a criminal matter pending during the period that he was with the District Attorney's office but concerning which he never was contacted and did not have access to nor knowledge of the files.
It is the belief of this Committee that there is no violation of the Canons of Ethics involved in this matter, and that he is justified in continuing his representation of the defendant in the criminal case.