Can a court-appointed criminal defense lawyer later represent the same client in a civil suit against the government arising from the same events?

Plain-English summary

A lawyer was appointed by the county court as counsel for a criminal defendant after the public defender was allowed to withdraw. The lawyer asked whether he could later represent the same client in a civil action against the state, a municipality, or a public officer arising out of the activities behind the criminal charge, noting that a public defender would not be permitted to take such representation.

A majority of the committee concluded that the appointed attorney may properly represent the defendant in the later civil case. The majority found that the lawyer not only has the right to discuss the availability of a civil remedy but a duty to advise the client of those rights under DR 2-104(A)(1), and that the statutory and ethical reasons disqualifying a public defender from such representation do not apply to a court-appointed attorney who, but for the appointment, would have no bar to pressing the civil action. The opinion recorded two minority views: two members would have treated the appointment as a special limitation barring different representation of the same client even on the same matter, with a referral to other counsel; one member would have allowed the civil representation only without a fee, to avoid any impression of solicitation.

Currency note

This opinion was issued in 1974, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.4 and 4-7.18 before relying on any specific requirement mentioned here.

Common questions

Q: Could a court-appointed criminal lawyer take the client's later civil case against the government?

A: Under this opinion, yes. The majority concluded that an appointed attorney may represent the same client in a later civil action arising from the same matter, distinguishing the position of a public defender.

Q: Did the committee say the lawyer should tell the client about a possible civil claim?

A: Yes. The majority found the lawyer has a duty, not merely a right, to advise the client of the availability of a civil remedy, citing DR 2-104(A)(1).

Q: Was the committee unanimous?

A: No. Two members would have barred the later representation as outside the scope of the appointment, and one member would have allowed it only if the lawyer took no fee, to avoid any impression of solicitation.

Background and rules framework

The opinion applied DR 2-104(A)(1) of the former Code of Professional Responsibility, which addressed a lawyer's advice to a client to obtain counsel or take legal action. In current Florida practice the duty to keep a client informed of available remedies corresponds to Rule 4-1.4 (communication), and the minority's solicitation concern corresponds to Rule 4-7.18 (direct contact with prospective clients); the Model Rule analogues are 1.4 and 7.3.

Citations and references

Rules of Professional Conduct:

• CPR DR 2-104(A)(1) (advice to a client to obtain counsel or take legal action)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-47/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-47-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 73-47
June 12, 1974
Advisory ethics opinions are not binding.
Court-appointed counsel for a criminal defendant may ethically represent the same client in a later civil suit against the government or a public officer based on the same matters involved in the criminal charge. In fact, the attorney has the positive duty to advise his client of the availability of any civil remedy.
CPR: DR 2-104(A)(1)
Vice Chairman Sullivan stated the opinion of the committee:
The inquiring attorney was appointed by the county court as counsel for a defendant in a criminal case after the public defender had been allowed to withdraw. We assume that the attorney did not seek the appointment.
The attorney asks whether he may ethically represent the same client in a later civil action against the state, a municipality or a public officer thereof arising out of activities relating to the alleged criminal charge. He points out that the public defender would not be allowed to accept such representation.
A majority of the Committee is of the opinion that the attorney may properly represent that defendant in a later civil case. They believe that the attorney has not only the right to discuss the availability of a civil remedy but a duty to advise his client of such rights. DR 2-104(A)(1). They do not believe the reasons a public defender is disqualified from accepting such representation, statutory and ethical, apply to a court-appointed attorney who but for that appointment would have no reason he could not press the civil action.
Two members of the Committee are of the opinion that a court-appointed attorney has a special limitation on his employment which prevents him from undertaking different representation of the same client even though it arises out of the same matter. They believe that such a court-appointed attorney should express no opinion upon the existence or merits of a civil claim but should refer the client to another attorney or a local legal aid group.
One member of the Committee is of the opinion that the court-appointed attorney may represent the client in a subsequent civil action provided he does so without fee, direct or contingent. The Committeeman believes that representation on a fee basis could result in the impression of solicitation.