Opinion 72-41 (Reconsidered)
FLORIDA BAR ETHICS OPINION
OPINION 72-41 (Reconsideration)
February 1, 1993
Advisory ethics opinions are not binding.
A lawyer who leaves a government prosecutor’s office to join a private law firm may not,
without the consent of the prosecutor’s office, represent any client in connection with a matter in
which the lawyer participated personally and substantially while a prosecutor. Even without
consent, another lawyer in the firm, or a lawyer who is of counsel to the firm, may represent
clients in such matters provided: (1) the former prosecutor is screened from any participation in
the case, and is directly apportioned no part of the fee from the case; and (2) the prosecutor’s
office is promptly given written notice of the representation.
The Committee has reconsidered and revised Opinion 72-41 in view of Rule 4-1.11,
Rules Regulating The Florida Bar.
The inquiring lawyer has recently resigned as assistant state attorney and gone into
partnership with a second lawyer, A.B. The partnership shares offices with another lawyer, C.D.,
and indicates that C.D. is “of counsel” on the partnership letterhead. C.D. is not a partner but is
treated more like an associate.
While serving as an assistant state attorney, the inquiring lawyer participated in the
investigation of an individual who was eventually indicted by the Grand Jury. This individual
has approached C.D. about representation in connection with the criminal charge. In addition,
C.D. represents other persons who were indicted while the inquirer served as assistant state
attorney. The inquirer ceased working on such cases as soon as he learned he was joining the
partnership. The inquirer plans not to participate with C.D. in any of these criminal cases or
share in the fees to be received by C.D. The inquirer asks our advice as to the propriety of his
continuing this relationship with A.B. and C.D. under these circumstances.
Ordinarily, the descriptive phrase “of counsel” connotes a lawyer’s continuing
relationship with a law firm, although not that of a partner or associate. See Opinions 75-41;
71-49. By reason of this continuing relationship, an attorney who is of counsel to another lawyer
or law firm usually falls within the proscription of Rule 4-1.10(a), Rules Regulating The Florida
Bar. Because the inquirer’s conflict question arose as a result of his move from government
employment to a private law firm, however, Rule 4-1.11 is the governing ethical standard.
Rule 4-1.11 provides in pertinent part:
(a) Representation of Private Client by Former Public Officer or
Employee. A lawyer shall not represent a private client in connection with a
matter in which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency consents after
consultation. No lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter unless:
(1) The disqualified lawyer is screened from any participation in the case
and is directly apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appropriate government agency
to enable it to ascertain compliance with the provisions of this rule.
* * *
(d) Matter Defined. As used in this rule, the term “matter” means:
(1) Any judicial or other proceeding, application, request for a ruling or
other determination, contract, claim, controversy, investigation, charge,
accusation, arrest, or other particular matter involving a specific party or parties;
(2) Any other matter covered by the conflict of interest rules of the
appropriate government agency.
Under this rule, the inquirer may not represent, or assist in the representation of, any
client in connection with a matter in which the inquirer participated personally and substantially
while he was an assistant state attorney, unless he first receives the consent of the state attorney’s
office. If this consent is not obtained, C.D. or A.B. may represent the accused persons provided:
(1) the inquirer is screened from any participation in the case, and is directly apportioned no part
of the fee from that case; and (2) the state attorney’s office is promptly given written notice of