Can an assistant city attorney prosecute someone a law partner once represented, where that representation ended before the partnership formed?

Plain-English summary

A member asked whether, in his capacity as an assistant city attorney, he could prosecute a person formerly represented by one of his partners. As the committee understood the facts, no member of his firm currently represented the party in any capacity and none had for approximately one year, and the partner's representation had been tendered and performed before the partnership was formed.

The committee was unanimous that no violation of the Canons of Professional Ethics would be involved in the lawyer acting as prosecutor under those circumstances. It went further, stating that it was in fact his duty as assistant city attorney to prosecute.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; duties to former clients are now addressed by Rule 4-1.9 and the conduct of government and former-government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.9 and 1.11). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the prosecutor go forward against a person his partner once represented?

A: Yes. The committee found no Canon violation, given that the prior representation ended before the partnership formed and no firm member had represented the person for about a year.

Q: Was prosecuting optional?

A: The committee said it was his duty as assistant city attorney to prosecute, not merely permissible.

Background and rules framework

The opinion applied former Canon 6 (conflicting interests) of the Canons of Professional Ethics. Duties to former clients are now governed by Rule 4-1.9, and the special situation of government lawyers by Rule 4-1.11, of the Rules Regulating The Florida Bar (Model Rules 1.9 and 1.11). The committee's analysis turned on the timing: the partner's representation predated the partnership and had ended, so no current loyalty obligation was implicated.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rules 4-1.9, 4-1.11]

See also

• FL Bar Ethics Op. 66-62: Prosecutor Later Representing a Wrongful-Death Claimant
• FL Bar Ethics Op. 65-17: County Prosecutor in Civil Suits Against the County
• FL Bar Ethics Op. 64-72: Prosecutor as Criminal Defense Counsel

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-63-31/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-63-31.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 63-31
November 22, 1963
Advisory ethics opinions are not binding.
It is not improper, but rather a duty, for an assistant city attorney to prosecute a person who was formerly represented by one of his partners, when no member of his firm has represented the alleged violator for some time and such representation occurred prior to the formation of the present partnership.
Canon: 6
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar requests an opinion from the Professional Ethics Committee regarding the propriety of his prosecuting in his capacity as an assistant city attorney a person formerly represented by one of his partners. It is our understanding that no member of his firm now represents the party in question in any capacity and has not done so for approximately one year. It is our further understanding that his partner's representations were tendered and performed prior to the formation of the partnership.
It is the unanimous opinion of the Committee that no violation of the Canons of Professional Ethics would be involved in the lawyer's acting as prosecutor under the circumstances. Further, the Committee feels it is in fact his duty as assistant city attorney to prosecute.