The Florida Bar

November 7, 1966

An attorney who prosecuted a vehicular homicide case as assistant state attorney may not thereafter represent the personal representative of the decedent in the prosecution of a civil wrongful death action arising from the same incident and directed against the same defendant.

Canons: 6, 36
Opinion: ABA 39, 135

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar, who is an assistant state attorney in a less populated area of Florida, has been requested by counsel representing the personal representative of a decedent to become associated in the handling of a wrongful death action arising from an automobile accident resulting in the death of the deceased. Prior to this request, the inquiring attorney had prosecuted in the circuit court the proposed defendant in the wrongful death action on a charge of vehicular homicide arising from the same accident and the same death. The defendant was acquitted of the criminal charges.

We are asked whether the representation of the personal repre- sentative in the wrongful death action would be proper. Canon 36 provides in effect that 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 had investigated or passed upon while in such office or employ.

In its Opinion 39, the American Bar Association Committee on Professional Ethics logically reasoned that in the light of this canon, a lawyer should not accept such employment while still in public office.

In line with that reasoning, the American Bar Association Committee in its Opinion 135 held that a prosecutor could not participate as counsel in a civil action based on substantially the same facts which he had investigated in his official capacity for purposes of determining criminal responsibility. The situation there presented and the one now before us are virtually identical, with the sole exception that in Opinion 135 the prosecutor apparently declined to prosecute, whereas here a trial resulted in a verdict of “not guilty.” This distinction does not seem controlling.

We therefore conclude that the intent of Canon 36 is such that it would not be proper for the prosecutor to participate in the wrongful death action in this instance.

[Revised: 08-24-2011]