Can a county attorney or prosecutor take private condemnation cases against the county, or private civil work arising from accidents he might prosecute?

Plain-English summary

The committee took up two questions. First, whether a county attorney whose statutory duty was to advise the board of county commissioners on all legal matters could represent landowners in condemnation suits when county funds (including the county's portion of the gasoline tax) would pay for the condemned property. Second, whether a county prosecutor would be disqualified from representing a plaintiff in an automobile-accident case where the defendant was charged with a criminal violation arising from the same accident.

On the first question, the committee distinguished a prosecutor who handles only criminal matters, who could represent private property owners in condemnation suits, from an attorney serving as legal adviser to the board of county commissioners, who should not accept employment from a landowner whose land the county is acquiring or might acquire. It reasoned that a prosecuting officer employed at the commission's pleasure might be subjected to pressure to advise a condemnation defendant to settle in the hope of preserving his own employment, and that this possibility, however remote, should disqualify him.

On the second question, the committee listed circumstances in which a prosecuting officer should not accept the private employment: while investigating the accident to decide whether to charge; while a criminal case is pending; before another officer's investigation that might lead to prosecution concludes; where a claim he represents might result in a prosecution; and where his only contact with the client arose from the investigation. It listed the converse situations in which there is no disqualification: where an investigation is complete and no prosecution will follow; where only simple negligence is involved and prosecution is proceeding in another court of concurrent jurisdiction; and where the prosecution has finally terminated. The committee concluded that accepting such civil employment is not improper in itself, but becomes improper if the employment might reasonably be calculated to influence the prosecutor's judgment in the criminal matter or give the opposing litigant reasonable grounds to believe the prosecutor's powers would be used to promote a private client's interests. The opinion carries a caveat that its second portion may be further limited by Opinion 59-25.

Currency note

This opinion was issued in 1959, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons 6 and 29 of the Canons of Professional Ethics; conflicts of interest and the conduct of current and former government lawyers are now addressed by Rules 4-1.7 and 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). The opinion itself notes that its second portion may be further limited by Opinion 59-25. 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: Can a county attorney represent landowners in condemnation suits against the county?

A: Not where he advises the board of county commissioners on all legal matters and county funds would pay for the condemned property. The committee said such an attorney should not accept employment from a landowner whose land the county is acquiring or might acquire.

Q: When may a prosecutor not take private civil work arising from an accident?

A: The committee listed several situations, including while he is investigating the accident, while a criminal case is pending, before another officer's investigation concludes, and where his only contact with the client arose from the investigation.

Q: When is such private employment acceptable?

A: When an investigation is complete and no prosecution will follow, when only simple negligence is involved and prosecution is proceeding in another court of concurrent jurisdiction, or when the prosecution has finally terminated.

Background and rules framework

The opinion applied former Canons 6 (representing conflicting interests) and 29 (upholding the honor of the profession) of the Canons of Professional Ethics, and relied on ABA Opinion 34, which held that the canon's consent clause could not operate in the case of a public officer. Conflicts of interest and the conduct of government lawyers are now addressed by Rules 4-1.7 and 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). The committee's analysis turned on the financial interest of the county, the risk of pressure on an at-will prosecuting officer, and the appearance that public office was being used for a private client.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.11]
• Canon 29 [Canons of Professional Ethics]

Other opinions cited:

• ABA Opinion 34: the consent clause of the canon could not operate in the case of a public officer.

See also

• FL Bar Ethics Op. 59-25: Personnel-Board Counsel Appearing Against the City
• FL Bar Ethics Op. 65-17: County Prosecutor in Civil Suits Against the County
• FL Bar Ethics Op. 66-53: County Attorney and Former Condemnation Landowner Clients
• FL Bar Ethics Op. 60-13: County Prosecutor Defending in Other Counties

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-59-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-59-2-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 59-2
June 25, 1959
Advisory ethics opinions are not binding.
Neither a county prosecutor whose duties by law include giving legal advice to the county commission in addition to prosecuting criminals nor a county attorney may represent a property owner in condemnation proceedings in which the county has a financial interest. It is improper for a county prosecutor to accept private employment in a civil action arising out of an automobile accident if the private employment might influence his judgment in any phase of the criminal matter or cause the opposing litigant reasonably to believe that a public office is being used to promote the interests of a private litigant.
Caveat: The second portion of this opinion may be further limited by Opinion 59-25.
Canons: 6, 29
Opinion: ABA 34
Chairman Holcomb stated the opinion of the committee:
The Committee on Ethics has received a request for opinions on the following:
(a) Whether it would be proper for a County Attorney of a relatively small Florida County to represent owners in condemnation suits, it appearing that County funds would be used in payment for the property condemned. It also appears that by Special Act of the Florida Legislature, it is the duty of the County Attorney to advise the Board of County Commissioners upon all legal matters and generally to attend to all legal matters coming under its jurisdiction. It also appears that partial payment for the condemned property would be made from the County's portion of the gasoline tax upon authorization by resolution of the Board of County Commissioners.
(b) Whether in automobile accident cases the County Prosecutor would be disqualified from representing a plaintiff where the defendant was charged with a criminal violation in connection with the operation of his automobile and when no criminal charge was made against the plaintiff by the investigating officer.
Canon 6 of the Canons of Professional Ethics provides that it is unprofessional to represent conflicting interests except by express consent of all concerned after a full disclosure of the facts. Opinion 34 of the American Bar Committee on Professional Ethics, rendered March 3, 1931, holds that the consent clause in the canon could not operate in the case of a public officer. Canon 29, relating to upholding the honor of the profession, holds that the lawyers should at all times strive to uphold the honor and maintain the dignity of the profession and to improve not only the law but the administration of justice. It is the opinion of the Committee that a County Prosecutor who is called upon to handle only criminal matters could be permitted to appear and represent private property owners in condemnation suits, but that an attorney occupying the position of a legal advisor to the Board of County Commissioners should not accept employment by a landowner whose land is being or might be acquired by the county for a road right-of-way. If a prosecuting officer is employed by the Board of County Commissioners who may summarily or at the end of an existing term terminate the employment, this would place the attorney in a position in which he might be subjected to pressure that would cause him to advise a defendant in a condemnation suit to accept a settlement in the hope that this action would assure his continued employment as prosecuting officer. The existence of this possibility, remote as it may be, should disqualify the prosecuting officer employed by the Board of County Commissioners from accepting such private employment.
On the question of the propriety of a prosecuting officer representing parties to a damage suit arising out of an accident which might result in a prosecution in which he would represent the state, the prosecuting officer should not accept employment: (a) while he is investigating the accident to determine whether a criminal charge should be filed; (b) while a criminal case is pending; (c) before investigation by other officers which might result in a prosecution is concluded; (d) where the circumstances are such that a person against whom a claim represented by the prosecutor a prosecution might result; and (e) when the only contact with the client arose out of the investigation of the accident. And conversely, there would appear to be no reason by a prosecuting officer would be disqualified when: (a) an investigation has been completed and it has been determined that no prosecution will be instituted; (b) only simple negligence is involved and prosecution has been undertaken in another court having concurrent jurisdiction; (c) the prosecution has been finally terminated.
It is not in and of itself improper for a prosecuting officer to accept private employment in a civil action arising out of an act of negligence in the operation of a motor vehicle even if he is charged with the duty of prosecuting cases of reckless driving. It is improper for a prosecutor to accept such employment if under the circumstances of the particular case the private employment might reasonably be calculated to influence his judgment in any phase of the criminal prosecution, or cause the opposing litigant reasonable grounds to believe the powers of the prosecutor would be used to promote the interests of the private client of the prosecuting officer.