The Florida Bar

Ethics Opinion

Opinion 72-48

February 13, 1973
Advisory ethics opinions are not binding.
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.

DR 5-105(D)

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This question is governed by this Committee’s opinion 70-11 [since withdrawn].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.