If a lawyer becomes an assistant state attorney, can he and his law partner keep taking court appointments to defend indigents in federal court?

Plain-English summary

A lawyer who practiced with one partner in Marianna had recently been appointed an assistant state attorney. Before the appointment, he and his partner had frequently served as court-appointed counsel for indigent defendants in the United States District Court in Marianna. Under DR 5-105(D), if the inquiring lawyer could not accept such appointments, his partner was barred from accepting them too. The committee was asked whether the inquiring attorney and his partner could keep serving as court-appointed counsel for indigents in federal court.

The committee answered the question under its earlier Opinion 70-11 (since withdrawn), which disapproved a state prosecutor's representation of a criminal defendant in another court in the same county, subject only to a hardship exception. The committee found these circumstances fell within that hardship exception. It concluded that, once the United States District Judge determines that the contemplated hardship conditions actually exist because of the small number of attorneys available for court appointment, it would be ethically proper for the inquirer and his partner to continue accepting court-appointed representation of indigent defendants.

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It relied on the former Code of Professional Responsibility and on the committee's Opinion 70-11, which has since been withdrawn. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.7 and 4-1.10 before relying on any specific requirement mentioned here.

Common questions

Q: Why was the lawyer's partner affected by the prosecutor's new role at all?

A: Under the former DR 5-105(D), a disqualification that barred one lawyer in a firm from accepting employment also barred his partners and associates. So if the new assistant state attorney could not take the appointments, neither could his partner, absent an exception.

Q: What made the appointments permissible despite that rule?

A: A hardship exception. The committee held the conduct proper only after the federal judge determines that hardship conditions exist because too few attorneys are available for appointment.

Q: Did the committee give blanket approval?

A: No. The approval was conditioned on the district judge's finding of actual hardship; the opinion did not authorize the appointments in the absence of that finding.

Background and rules framework

The opinion applied DR 5-105(D) of the former Code of Professional Responsibility, which imputed one lawyer's conflict-based disqualification to partners and associates. In current Florida practice the imputation principle corresponds to Rule 4-1.10 and the underlying conflict analysis to Rule 4-1.7; the Model Rule analogues are Rules 1.10 and 1.7. The opinion turned on its earlier Opinion 70-11 and that opinion's hardship provision.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Florida Opinion 70-11 (since withdrawn): prosecutor's representation of a criminal defendant in the same county, with a hardship exception

See also

• FL Bar Ethics Op. 72-38: Professional Association Member as Assistant Public Defender
• FL Bar Ethics Op. 75-23: Federal Appointment for an Associate of an Assistant Public Defender
• FL Bar Ethics Op. 75-14: Part-Time Assistant State Attorney Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-48/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-48-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-48
February 13, 1973
Advisory ethics opinions are not binding.
Upon determination by a U.S. district judge that hardship conditions exist in a particular county because of the small number of attorneys available for court appointment, it is ethically proper for a newly appointed assistant state attorney and his partner to continue to serve as court-appointed defense counsel for indigents in the federal court.
CPR: DR 5-105(D)
Opinion: 70-11
Vice Chairman Zehmer stated the opinion of the committee:
A member of The Florida Bar, who practices law with one partner in Marianna, Florida, has recently been appointed assistant state attorney. Prior to this appointment he and his partner frequently served as court-appointed counsel for indigent defendants in the United States District Court in Marianna. By reason of DR 5-105(D), the inquirer's partner is prevented from accepting such appointment if the inquiring attorney may not do so. This Committee is asked to pass on the ethical propriety of the inquiring attorney and his partner continuing to serve as court appointed counsel for indigents in the federal court.
This question is governed by this Committee's opinion 70-11 [since withdrawn]. That opinion disapproves a state prosecuting attorney's representation of a criminal defendant in another court within the same county in which he serves as prosecutor, whether state or federal, subject only to the hardship provisions as set forth in subparagraph (d) of that opinion. The Committee feels that the above circumstances fall within this hardship exception. Accordingly, upon determination by the United States District Judge that the hardship conditions contemplated in that opinion actually exist because of the small number of available attorneys for court appointment, it will be ethically proper for the inquirer and his partner to continue accepting court-appointed representation of indigent defendants.