Can an assistant state attorney who prosecuted a defendant for vehicular homicide later represent the decedent's family in a civil wrongful death suit against the same defendant?

Plain-English summary

An assistant state attorney in a less populated area of Florida had prosecuted a defendant in the circuit court for vehicular homicide arising from an automobile accident; the defendant was acquitted. Counsel for the decedent's personal representative then asked him to become associated in a wrongful death action arising from the same accident and death, against the same defendant. He asked whether that civil representation would be proper.

The committee applied Canon 36, which provided that a lawyer who had held public office or been in public employ should not, after leaving, accept employment connected with a matter he had investigated or passed upon while in office. Citing ABA Opinion 39, the committee noted a lawyer should not accept such employment even while still in office, and citing ABA Opinion 135, it noted a prosecutor could not participate as counsel in a civil action based on substantially the same facts he had investigated officially to determine criminal responsibility. The committee found the present situation virtually identical to ABA Opinion 135, the only difference being that here a trial produced a not-guilty verdict rather than a declination to prosecute, which it did not find controlling. It concluded the intent of Canon 36 made it improper for the prosecutor to participate in the wrongful death action.

Currency note

This opinion was issued in November 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 36 on accepting private employment in a matter handled in public office. Conflicts arising from a lawyer's prior government service are now governed by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rule 1.11). 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 Treat this page as historical context, not current guidance.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: Could the former prosecutor take the wrongful death case against the same defendant?

A: No. The committee concluded the intent of Canon 36 made it improper for the prosecutor to participate in the wrongful death action arising from the same incident and death.

Q: Did it matter that the criminal case ended in an acquittal rather than no charges?

A: No. The committee said the distinction between a not-guilty verdict here and the declination to prosecute in ABA Opinion 135 did not seem controlling.

Q: What was the rationale for the bar?

A: Under Canon 36, a lawyer who investigated or passed upon a matter in public office should not, after leaving, accept private employment connected with that same matter; the committee read the wrongful death suit as the same matter the prosecutor had handled criminally.

Background and rules framework

The opinion applied the former Canon 36, which barred a lawyer from accepting, after public service, employment connected with a matter he had investigated or passed upon while in office. That subject is now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar (former government lawyers); the Model Rule analogue is Rule 1.11. The committee anchored its conclusion to ABA Opinions 39 and 135 construing the same canon.

Citations and references

Rules of Professional Conduct:

• Canons 6, 36 [Canons of Professional Ethics; see current Rule 4-1.11]

Other opinions cited:

• ABA Opinion 39 (lawyer should not accept such employment while still in office)
• ABA Opinion 135 (prosecutor may not appear in civil action on substantially the same facts)

See also

• FL Bar Ethics Op. 67-21: Former Prosecutor Conflict
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-62/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-62.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-62
November 7, 1966
Advisory ethics opinions are not binding.
An attorney who prosecuted a vehicular homicide case as assistant state attorney may not thereafter represent the personal representative of the decedent in the prosecution of a civil wrongful death action arising from the same incident and directed against the same defendant.
Canons: 6, 36
Opinion: ABA 39, 135
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar, who is an assistant state attorney in a less populated area of Florida, has been requested by counsel representing the personal representative of a decedent to become associated in the handling of a wrongful death action arising from an automobile accident resulting in the death of the deceased. Prior to this request, the inquiring attorney had prosecuted in the circuit court the proposed defendant in the wrongful death action on a charge of vehicular homicide arising from the same accident and the same death. The defendant was acquitted of the criminal charges.
We are asked whether the representation of the personal representative in the wrongful death action would be proper. Canon 36 provides in effect that a lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he had investigated or passed upon while in such office or employ.
In its Opinion 39, the American Bar Association Committee on Professional Ethics logically reasoned that in the light of this canon, a lawyer should not accept such employment while still in public office.
In line with that reasoning, the American Bar Association Committee in its Opinion 135 held that a prosecutor could not participate as counsel in a civil action based on substantially the same facts which he had investigated in his official capacity for purposes of determining criminal responsibility. The situation there presented and the one now before us are virtually identical, with the sole exception that in Opinion 135 the prosecutor apparently declined to prosecute, whereas here a trial resulted in a verdict of "not guilty." This distinction does not seem controlling.
We therefore conclude that the intent of Canon 36 is such that it would not be proper for the prosecutor to participate in the wrongful death action in this instance.