Can a lawyer take a federal indigent-defense appointment when his associate is a part-time assistant public defender?

Plain-English summary

A federal judge appointed a member of The Florida Bar to represent an indigent defendant in a federal criminal case. An associate of the appointed attorney was a part-time assistant public defender in state court. The attorney asked whether he could properly accept the federal appointment.

A majority of the committee concluded the attorney may ethically accept the appointment unless doing so would be illegal under Section 27.51(3), Florida Statutes, which provides that an assistant public defender "shall not otherwise engage in the practice of criminal law." The committee noted the Attorney General had ruled that an assistant public defender may not be in partnership with a lawyer engaged in the private practice of criminal law (Op. Atty. Gen. 069-108), but said that whether the statute reached only state-court practice, and whether a federal indigent appointment amounted to the private practice of law, were legal questions beyond the committee's jurisdiction. Turning to the Code, the committee did not believe that one attorney representing a federal indigent while his associate represented other indigents as a state assistant public defender created a conflict of interest under DR 5-105; absent the statute, it knew of no ethical reason the arrangement was improper, and found neither a likelihood that the assistant public defender would use his position to build a private practice nor the potential for the embarrassment that could arise if a state defendant first tried to retain the firm and then ended up represented by the public defender's office. The committee suggested the attorney may want to advise the court, the United States Attorney, and the client of the association, but said that, statute aside, the Code did not prohibit accepting the appointment.

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 Treat this page as historical context, not current guidance.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

Common questions

Q: Does an associate being a part-time assistant public defender create a conflict for the firm?

A: The opinion concluded it did not create a conflict of interest under DR 5-105 on these facts; absent the statute, the committee knew of no ethical bar to the federal appointment.

Q: Did the committee decide whether the public defender statute forbade it?

A: No. The committee said whether Section 27.51(3) reached the federal appointment was a legal question beyond its jurisdiction; it noted, in the opinion's headnote, an Attorney General opinion finding the practice in violation of the statute.

Q: Should the lawyer disclose the association?

A: The committee said the attorney, before accepting, may want to advise the court, the United States Attorney, and the client of his legal association with the assistant public defender.

Background and rules framework

The opinion applied DR 5-105 of the former Code of Professional Responsibility, governing conflicts arising from multiple and associated representations. That subject corresponds to Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation within a firm); the current Florida counterparts are Rules 4-1.7 and 4-1.10.

Citations and references

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

• CPR DR 5-105 (conflicts of interest in multiple representation)

Statutes:

• Section 27.51(3), Florida Statutes (assistant public defenders)

Other authorities cited:

• Op. Atty. Gen. 069-108 (Nov. 13, 1969); the headnote notes Op. Atty. Gen. 075-284 found the approved practice in violation of Fla. Stat. § 27.51(3)

See also

• FL Bar Ethics Op. 75-33: Firm Adverse to City Client
• FL Bar Ethics Op. 76-9: Negligence vs. Competence

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-23/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-23-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-23
July 23, 1975
Advisory ethics opinions are not binding.
An attorney appointed to represent an indigent defendant in a criminal case in federal court may properly do so even though his associate is a part-time assistant public defender in state court.
Note: Attorney General Opinion 075-284 holds the practice approved here to be in violation of Fla. Stat. §27.51(3).
CPR: DR 5-105
Statute: F.S. §27.51(3)
Attorney General Opinion: 069-108
Vice Chairman Sullivan stated the opinion of the committee:
A federal judge has appointed a member of The Florida Bar to represent an indigent defendant in a criminal case in federal court. An associate of the court-appointed attorney is a part-time assistant public defender.
The attorney asks if he may properly accept the appointment in federal court.
A majority of the Committee is of the opinion that the attorney may ethically accept the appointment unless doing so would be illegal under Section 27.51(3), Florida Statutes.
Section 27.51(3) states that an assistant public defender "shall not otherwise engage in the practice of criminal law." We note that the Attorney General has ruled that an assistant public defender may not be in partnership with another lawyer who is engaged in the private practice of criminal law. Op. Atty. Gen. 069-108, Nov. 13, 1969.
Whether that statute refers to a criminal law practice in state courts only or whether a federal court appointment to represent an indigent defendant in a criminal matter amounts to the private practice of law within the meaning of the Attorney General's opinion are legal questions beyond the jurisdiction of this Committee.
Turning to the CPR, we do not believe that one attorney representing an indigent in a criminal matter in federal court while his associate represents other indigents in other criminal matters in state court as assistant public defender creates a conflict of interest under DR 5-105. But for the statute, we know of no ethical reason the attorney who is the assistant public defender could not represent the indigent defendant in federal court.
One of the purposes of Section 27.51(3) may have been to prevent an assistant public defender from using his position to develop a separate concurrent private criminal law practice. We do not find any likelihood of that here where the attorney has been appointed by the federal court to represent an indigent. Nor do we find the potential for embarrassment that could occur if a defendant in a criminal case in state court first tried to retain one member of the law firm and, because of financial reasons, ended up represented by the Public Defender's Office and by the assistant public defender who was an associate in the law firm.
The attorney, before accepting the appointment in the federal court case, may want to advise the court, the United States Attorney, and the client of his legal association with the assistant public defender, but, statute aside, we do not believe the CPR prohibits accepting the appointment.