The Florida Bar

Ethics Opinion

Opinion 72-41

February 22, 1973
Advisory ethics opinions are not binding.
A lawyer who is of counsel to a firm in which a former assistant state attorney has become a
partner may not represent criminal defendants in cases on which the new partner had worked as
assistant state attorney.

DR 2-102(A)(4), 5-105(D)
61-20; ABA Informal 855, 995

Vice Chairman Zehmer stated the opinion of the committee:
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. DR 2-102(A)(4). By
reason of his continuing relationship with the partnership, C.D. falls within the proscription of
DR 5-105(D). Compare Florida Opinion 61-20 and ABA Informal Opinions 855 and 995.
DR 5-105(D) provides:
If a lawyer is required to decline employment or to withdraw from
employment under DR 5-105, no partner or associate of his or his firm may
accept or continue such employment.
Since the inquiring lawyer could not ethically accept employment by the accused persons
represented by C.D., the Committee concludes that C.D. should not continue such representation
so long as his relationship with the firm of which the inquirer is a partner continues. The CPR
has not changed the longstanding rule that what one lawyer may not ethically do, neither may
any other lawyer in the firm, whether he is a partner, associate or “of counsel.”