Can a former assistant state attorney represent the family of a person whose death he helped investigate, and share a fee for it?

Plain-English summary

A lawyer asked whether he could divide a contingent fee, in an action against a life insurer, with another lawyer with whom he shared offices on an expense-sharing basis. That second lawyer had formerly been chief of a division of the local state attorney's office, which had occasion to investigate the death now at issue in the suit. Because he knew the family, the matter had been assigned to a subordinate, but the division chief discharged general supervisory and review responsibilities. A coroner's inquest returned a verdict of accidental death. After the chief left the state attorney's office, the family discharged their inquest attorney and asked him to prosecute the suit; he declined and referred it to the inquirer.

Assuming the fee division would otherwise satisfy the former Canon 34, the committee focused on Canon 36, which provided that a lawyer who had held public office or been in public employ should not, after retirement, accept employment in connection with any matter he investigated or passed upon while in office. Relying on its Opinion 66-62 and ABA Opinion 39 (which extended the canon to acceptance of employment while still in office), the committee held the canon applied to this situation. Even though the inquirer saw no conflict between representing the state and representing the family against the insurer, the committee reasoned that the canon was designed to avoid not only immediate conflicts but the appearance of solicitation or other improper relationships. The committee concluded, three members dissenting, that because the former assistant state attorney could not properly accept the employment in the first instance, he could not participate in a division of the fee.

Currency note

This opinion was issued in November 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 36 (successive government and private employment) and Canon 34 (division of fees). The duties of a former government officer or employee are now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar, and fee division by Rule 4-1.5(f) (Model Rules 1.11 and 1.5). 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 Treat this page as historical context, not current guidance.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: Can a lawyer who left a prosecutor's office take a private case that office had investigated?

A: Under this opinion, no, where the lawyer had supervisory responsibility over the investigation. The committee applied the former Canon 36, which barred accepting employment connected to a matter the lawyer investigated or passed upon in public office.

Q: Did it matter that there was no actual conflict between the state and the family?

A: No. The committee said the canon was designed to avoid not only immediate conflicts but the appearance of solicitation or other improper relationships.

Q: Why couldn't the lawyer at least share the fee?

A: Because he could not properly accept the employment in the first instance, the committee held, three members dissenting, that he could not participate in a division of the fee for it.

Background and rules framework

The opinion applied the former Canon 36, which restricted a lawyer's post-government employment in matters the lawyer had investigated or passed upon in office, and the former Canon 34 on division of fees. Those subjects are now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar (former and current government officers and employees) and Rule 4-1.5(f) (division of fees between lawyers); the Model Rule analogues are Rules 1.11 and 1.5.

Citations and references

Rules of Professional Conduct:

• Canon 34 [Canons of Professional Ethics; division of fees]
• Canon 36 [Canons of Professional Ethics; successive government and private employment]

Other opinions cited:

• Florida Opinion 66-62
• ABA Opinion 39

See also

• FL Bar Ethics Op. 71-1: Former IRS Agent Representing a Taxpayer on Examined Returns
• FL Bar Ethics Op. 69-7: Tax Assessor's Counsel Cannot Represent a Claimant

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-21/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-21.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-21
November 27, 1967
Advisory ethics opinions are not binding.
A former assistant state attorney who performed supervisory responsibilities in connection with an investigation of a death may not later represent the family of the deceased in a suit for accidental death benefits and, accordingly, cannot share in a fee with another lawyer for prosecuting such a claim.
Canons: 34, 36
Opinions: 66-62, ABA 39
Chairman MacDonald stated the opinion of the committee:
We are advised by a member of The Florida Bar that he is in doubt as to whether he may properly divide a contingent fee in an action against a life insurer with another lawyer with whom he shares a suite of offices on an expense sharing basis. It appears that the latter attorney was formerly chief of a division of the local office of the state attorney, which division had occasion to investigate the death now involved in this suit against the life insurance company. Because this lawyer was personally acquainted with members of the family of the deceased, the matter was assigned by him to one of his subordinates. However, the lawyer did discharge general supervisory and review responsibilities of the actions of this attorney. In the course of this handling a coroner's inquest was held resulting in a verdict of an accidental death. At this time the family of the deceased was represented by a third attorney.
Several months thereafter the division chief left the office of the state attorney. Subsequently the family of the deceased discharged the attorney who had represented them at the inquest, and requested the former assistant state attorney to prosecute a suit against the life insurer for accidental death benefits. He declined and referred it to the inquirer.
We assume for purposes of this inquiry that the proposed division of fee would be consistent with the requirements of Canon 34. However, we are bothered with a more basic question, the effect of Canon 36 upon this situation. This Canon provides in part as follows:
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 has investigated or passed upon while in such office or employ.
This Committee in its Opinion 66-62, and the American Bar Association Committee in its Opinion 39, has extended the literal language of this canon to apply to the acceptance of such employment while the lawyer was still in public office.
Manifestly the language by its express terms applies to the present situation where the lawyer in question has left public employment subsequent to representing the public in connection with the matter in question. Although, as pointed out by the inquirer, it would appear that there is no conflict of interest involved between the representation of the state and the family of the deceased against the life insurance company, this would not appear to be a controlling consideration. Rather, we think that the canon was designed to preclude not only immediate conflicts of interest, but the avoidance of situations such as the present one in which there might be evident an appearance of solicitation or other improper relationship.
Therefore we conclude, three members dissenting, that the former assistant state attorney, not being in a position to properly accept employment in the first instance under the provisions of Canon 36, cannot participate in a division of the fee.