The Florida Bar

February 13, 1973

Upon determination by a U.S. district judge that hardship conditions exist in a particular county because of the small number of attorneys available for court appointment, it is ethically proper for a newly appointed assistant state attorney and his partner to continue to serve as court-appointed defense counsel for indigents in the federal court.

CPR: DR 5-105(D)
Opinion: 70-11

Vice Chairman Zehmer stated the opinion of the committee:

A member of The Florida Bar, who practices law with one partner in Marianna, Florida, has recently been appointed assistant state attorney. Prior to this appointment he and his partner frequently served as court-appointed counsel for indigent defendants in the United States District Court in Marianna. By reason of DR 5-105(D), the inquirer's partner is prevented from accepting such appointment if the inquiring attorney may not do so. This Committee is asked to pass on the ethical propriety of the inquiring attorney and his partner continuing to serve as court appointed counsel for indigents in the federal court.

This question is governed by this Committee's opinion 70-11 [since withdrawn]. That opinion disapproves a state prosecuting attorney's representation of a criminal defendant in another court within the same county in which he serves as prosecutor, whether state or federal, subject only to the hardship provisions as set forth in subparagraph (d) of that opinion. The Committee feels that the above circumstances fall within this hardship exception. Accordingly, upon determination by the United States District Judge that the hardship conditions contemplated in that opinion actually exist because of the small number of available attorneys for court appointment, it will be ethically proper for the inquirer and his partner to continue accepting court-appointed representation of indigent defendants.

[Revised: 08-24-2011]