Can a firm with a part-time assistant state attorney represent a public body when the state attorney is served in that suit?

Plain-English summary

A law firm that employed or had as a partner a part-time assistant state attorney asked whether it could represent a public body in a bond validation proceeding in which the state attorney is served with process for response on behalf of the public, with the assistant state attorney in the firm taking no part in the proceeding.

The committee answered no. It reasoned that if one lawyer in a firm is disqualified because of a conflict of interest, all lawyers in the firm are likewise disqualified, as DR 5-105(D) expressly provides, citing Opinion 65-72. Because the assistant state attorney's office was on the responding side of the proceeding, the firm could not represent the public body, even though that lawyer would not personally participate.

Currency note

This opinion was issued in 1975, 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 Treat this page as historical context, not current guidance.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 4-1.10 and 4-1.7 before relying on any specific requirement mentioned here.

Common questions

Q: Does screening the part-time state attorney from the case cure the conflict?

A: The opinion concluded it did not; under DR 5-105(D), one lawyer's disqualifying conflict is imputed to the whole firm, so the firm could not take the representation even though that lawyer took no part.

Q: What was the underlying conflict?

A: Per the opinion, the firm sought to represent a public body in a proceeding in which the state attorney, the office of the firm's own part-time assistant state attorney, was served to respond on behalf of the public.

Background and rules framework

The opinion applied DR 5-105(D) of the former Code of Professional Responsibility, which imputed one lawyer's conflict to the entire firm. That subject corresponds to Model Rule 1.10 (imputation of conflicts) and Model Rule 1.7 (concurrent conflicts); the current Florida counterparts are Rules 4-1.10 and 4-1.7.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 5-105(D) (imputed disqualification within a firm)

Other opinions cited:

• Florida Bar Opinion 65-72

See also

• FL Bar Ethics Op. 75-23: Associate of Assistant PD
• FL Bar Ethics Op. 75-33: Firm Adverse to City Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-14/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-14-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-14
July 23, 1975
Advisory ethics opinions are not binding.
If a firm employs or has as a partner a part-time assistant state attorney, the firm may not represent a public body in a suit in which the state attorney will be served with process for response on behalf of the public.
CPR: DR 5-105(D)
Opinion: 65-72
Vice Chairman Daniels stated the opinion of the committee:
A law firm employs or has as a partner a part-time Assistant State Attorney. A member of the firm inquires as to whether it may represent a public body in a bond validation proceeding "wherein the State Attorney is served with process for response on behalf of the public." The Assistant State Attorney in the firm will take no part in the bond validation proceeding.
The inquiry must be answered in the negative. If one lawyer in a firm is disqualified because of a conflict of interest, all lawyers in the firm are likewise disqualified. DR 5-105(D) expressly so provides. Cf. Opinion 65-72.