If one lawyer in a professional association becomes an assistant public defender, can the firm's other lawyers still take criminal cases?

Plain-English summary

A member of a professional association was considering employment by a public defender to handle appellate work. He asked whether that employment would prevent the other members of his law firm from handling criminal cases.

The committee pointed to F.S. Section 27.51(3), which provides that assistant public defenders "shall not otherwise engage in the practice of criminal law," and to DR 5-105(D), under which a disqualification that requires one lawyer to decline or withdraw from employment bars his partners and associates from accepting or continuing it. Applying that disciplinary rule and the general principles governing partnerships and professional associations, the committee concluded that no member of the inquirer's firm could handle criminal cases if the inquirer accepted employment as an assistant public defender.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 5-105(D) of the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.10 before relying on any specific requirement mentioned here.

Common questions

Q: Did one lawyer's public defender job affect the whole firm?

A: Under this opinion, yes. The committee held that no other member of the professional association could handle criminal cases while the inquirer served as an assistant public defender.

Q: What was the basis for that imputed disqualification?

A: The committee relied on F.S. Section 27.51(3), which bars assistant public defenders from otherwise practicing criminal law, together with DR 5-105(D), which extends a lawyer's disqualification to his partners and associates.

Background and rules framework

The opinion applied DR 5-105(D) of the former Code of Professional Responsibility, which imputed one lawyer's disqualification to the rest of the firm, and the statutory restriction in F.S. Section 27.51(3) on assistant public defenders practicing criminal law. In current Florida practice the imputation principle corresponds to Rule 4-1.10; the Model Rule analogue is Rule 1.10.

Citations and references

Rules of Professional Conduct:

• CPR DR 5-105(D) (imputed disqualification of partners and associates)

Statutes:

• F.S. Section 27.51(3) (assistant public defenders shall not otherwise engage in the practice of criminal law)

See also

• FL Bar Ethics Op. 72-41: "Of Counsel" and Imputed Conflicts
• FL Bar Ethics Op. 72-48: Prosecutor and Partner as Appointed Defense Counsel
• FL Bar Ethics Op. 75-23: Federal Appointment for an Associate of an Assistant Public Defender

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-38/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-38-1-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-38
November 10, 1972
Advisory ethics opinions are not binding.
If a member of a professional association accepts employment as an assistant public defender, no other member of such association may handle criminal cases.
CPR: DR 5-105(D)
Statute: F.S. §27.51(3)
Vice Chairman Daniels stated the opinion of the committee:
A member of a professional association contemplates accepting employment by a public defender to handle appellate work for the latter. Inquiry is made as to whether such employment would preclude other members of the inquirer's law firm from handling criminal cases.
F.S. §27.51(3) provides that assistant public defenders "shall not otherwise engage in the practice of criminal law." DR 5-105(D) of the Code of Professional Responsibility provides:
If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.
In view of the above Disciplinary Rule and the general principles applicable to partnerships and professional associations, the Committee is of the opinion that no members of the inquirer's firm may handle criminal cases if the inquirer accepts employment as an assistant public defender.