If a former assistant state attorney joins a firm, can a lawyer who is 'of counsel' to that firm defend people the new partner had helped prosecute?

Plain-English summary

A lawyer who had recently resigned as an assistant state attorney formed a partnership with a second lawyer, A.B. That partnership shared offices with another lawyer, C.D., who was shown as "of counsel" on the firm's letterhead and treated more like an associate than a partner. While in office, the inquiring lawyer had participated in investigating an individual who was later indicted; that individual approached C.D. about representation, and C.D. already represented other people indicted during the inquirer's tenure. The inquirer had stopped working on those cases when he learned he was joining the firm and planned not to participate in them or share in C.D.'s fees. He asked whether his continuing relationship with A.B. and C.D. was proper.

The committee explained that "of counsel" denotes a continuing relationship with a firm, and that by reason of that continuing relationship C.D. fell within DR 5-105(D). Because the inquiring lawyer could not ethically accept the defense of the indicted persons, C.D. could not continue that representation as long as his relationship with the firm continued. The committee restated the longstanding rule that what one lawyer in a firm may not ethically do, no other lawyer in the firm may do, whether partner, associate, or "of counsel."

Currency note

This opinion was issued in 1973, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 2-102(A)(4) and 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 Treat this page as historical context, not current guidance.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 Rules 4-1.10 and 4-1.11 before relying on any specific requirement mentioned here.

Common questions

Q: Does an "of counsel" lawyer count as part of the firm for conflicts?

A: Under this opinion, yes. The committee held that the continuing relationship signified by "of counsel" brought C.D. within DR 5-105(D), so the firm's disqualification reached him.

Q: Did it matter that the of-counsel lawyer would not share fees or work on the cases?

A: No. The committee applied the rule that what one lawyer in the firm cannot ethically do, no other lawyer in the firm may do, regardless of fee-sharing or division of labor.

Q: Why was the former prosecutor disqualified from these defenses?

A: Because he had participated in investigating one of the individuals while serving as an assistant state attorney, he could not then defend that person, and that disqualification was imputed to the firm.

Background and rules framework

The opinion applied DR 2-102(A)(4) (the "of counsel" designation on letterhead) and DR 5-105(D) (imputation of one lawyer's disqualification to the firm) of the former Code of Professional Responsibility. In current Florida practice the imputation principle corresponds to Rule 4-1.10 and the former-government-lawyer conflict to Rule 4-1.11; the Model Rule analogues are Rules 1.10 and 1.11.

Citations and references

Rules of Professional Conduct:

• CPR DR 2-102(A)(4) ("of counsel" designation); DR 5-105(D) (imputed disqualification)

Other opinions cited:

• Florida Opinion 61-20
• ABA Informal Opinion 855
• ABA Informal Opinion 995

See also

• FL Bar Ethics Op. 72-48: Prosecutor and Partner as Appointed Defense Counsel
• FL Bar Ethics Op. 72-38: Professional Association Member as Assistant Public Defender
• FL Bar Ethics Op. 75-41: When "Of Counsel" Describes a Continuing Relationship

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-41/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-41-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-41
February 22, 1973
Advisory ethics opinions are not binding.
A lawyer who is of counsel to a firm in which a former assistant state attorney has become a partner may not represent criminal defendants in cases on which the new partner had worked as assistant state attorney.
CPR: DR 2-102(A)(4), 5-105(D)
Opinions: 61-20; ABA Informal 855, 995
Vice Chairman Zehmer stated the opinion of the committee:
The inquiring lawyer has recently resigned as assistant state attorney and gone into partnership with a second lawyer, A.B. The partnership shares offices with another lawyer, C.D., and indicates that C.D. is "of counsel" on the partnership letterhead. C.D. is not a partner but is treated more like an associate.
While serving as an assistant state attorney, the inquiring lawyer participated in the investigation of an individual who was eventually indicted by the Grand Jury. This individual has approached C.D. about representation in connection with the criminal charge. In addition, C.D. represents other persons who were indicted while the inquirer served as assistant state attorney. The inquirer ceased working on such cases as soon as he learned he was joining the partnership. The inquirer plans not to participate with C.D. in any of these criminal cases or share in the fees to be received by C.D. The inquirer asks our advice as to the propriety of his continuing this relationship with A.B. and C.D. under these circumstances.
Ordinarily, the descriptive phrase "of counsel" connotes a lawyer's continuing relationship with a law firm, although not that of a partner or associate. DR 2-102(A)(4). By reason of his continuing relationship with the partnership, C.D. falls within the proscription of DR 5-105(D). Compare Florida Opinion 61-20 and ABA Informal Opinions 855 and 995.
DR 5-105(D) 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.
Since the inquiring lawyer could not ethically accept employment by the accused persons represented by C.D., the Committee concludes that C.D. should not continue such representation so long as his relationship with the firm of which the inquirer is a partner continues. The CPR has not changed the longstanding rule that what one lawyer may not ethically do, neither may any other lawyer in the firm, whether he is a partner, associate or "of counsel."