The Florida Bar

July 23, 1975
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: Atty. Gen. Opin. 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.

[Revised: 08-24-2011]