Ethics Opinion

Opinion 66-62

FLORIDA BAR ETHICS OPINION
OPINION 66-62
November 7, 1966
Advisory ethics opinions are not binding.
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:
Opinion:

6, 36
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 representative 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.