The Florida Bar

November 27, 1967

A former assistant state attorney who performed supervisory responsibilities in connection with an investigation of a death may not later represent the family of the deceased in a suit for accidental death benefits and, accordingly, cannot share in a fee with another lawyer for prosecuting such a claim.

Canons: 34, 36
Opinions: 66-62, ABA 39

Chairman MacDonald stated the opinion of the committee:

We are advised by a member of The Florida Bar that he is in doubt as to whether he may properly divide a contingent fee in an action against a life insurer with another lawyer with whom he shares a suite of offices on an expense sharing basis. It appears that the latter attorney was formerly chief of a division of the local office of the state attorney, which division had occasion to investigate the death now involved in this suit against the life insurance company. Because this lawyer was personally acquainted with members of the family of the deceased, the matter was assigned by him to one of his subordinates. However, the lawyer did discharge general supervisory and review responsibilities of the actions of this attorney. In the course of this handling a coroner's inquest was held resulting in a verdict of an accidental death. At this time the family of the deceased was represented by a third attorney.

Several months thereafter the division chief left the office of the state attorney. Subsequently the family of the deceased discharged the attorney who had represented them at the inquest, and requested the former assistant state attorney to prosecute a suit against the life insurer for accidental death benefits. He declined and referred it to the inquirer.

We assume for purposes of this inquiry that the proposed division of fee would be consistent with the requirements of Canon 34. However, we are bothered with a more basic question, the effect of Canon 36 upon this situation. This Canon provides in part as follows:

A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.

This Committee in its Opinion 66-62, and the American Bar Association Committee in its Opinion 39, has extended the literal language of this canon to apply to the acceptance of such employment while the lawyer was still in public office.

Manifestly the language by its express terms applies to the present situation where the lawyer in question has left public employment subsequent to representing the public in connection with the matter in question. Although, as pointed out by the inquirer, it would appear that there is no conflict of interest involved between the representation of the state and the family of the deceased against the life insurance company, this would not appear to be a controlling consideration. Rather, we think that the canon was designed to preclude not only immediate conflicts of interest, but the avoidance of situations such as the present one in which there might be evident an appearance of solicitation or other improper relationship.

Therefore we conclude, three members dissenting, that the former assistant state attorney, not being in a position to properly accept employment in the first instance under the provisions of Canon 36, cannot participate in a division of the fee.

[Revised: 08-24-2011]