The Florida Bar
OPINION 73-47Court-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.
June 12, 1974
June 12, 1974
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 soliciation.