May a lawyer who serves as county prosecutor defend people accused of crimes in other counties or circuits?

Plain-English summary

The committee was asked whether a lawyer could ethically represent clients in criminal actions tried in counties or circuits other than his own, while serving as a county prosecutor. It drew on Drinker's Legal Ethics and a line of ABA opinions: a county attorney in charge of prosecuting crimes in his county should not, while in office, undertake to obtain a pardon for one convicted in his county (ABA Opinion 136); a public prosecutor in one state may not properly defend a person accused of crime in another state (ABA Opinion 30); a partner of a prosecuting attorney may not defend one accused of crime in another county (ABA Opinions 16, 192); and a law firm cannot properly accept any employment which one of its partners cannot properly accept (ABA Opinion 72).

Although there was one dissent, the remainder of the committee agreed that representation of one accused of a crime in a county other than his own, by a county prosecutor, would be unethical conduct.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canon 6 of the Canons of Professional Ethics; conflicts of interest and the special restrictions on lawyers who serve as public officers 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). Treat this page as historical context, not current guidance.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: Did it matter that the prosecutor would defend only in other counties or circuits?

A: No, in the majority view. The committee concluded that a county prosecutor defending the criminally accused would be unethical even in counties or circuits other than his own.

Q: Did the restriction reach the prosecutor's partners?

A: The opinion relied on ABA authority that a partner of a prosecuting attorney may not defend one accused of crime in another county, and that a firm cannot accept employment one of its partners cannot accept.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics, which made it unprofessional to represent conflicting interests. Conflicts of interest and the restrictions on lawyers serving as public officers 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 relied on Drinker and a line of ABA opinions treating prosecutorial office as incompatible with criminal defense work.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• ABA Opinions 16, 30, 72, 136, 192

Other authorities:

• Drinker, Legal Ethics, p. 118

See also

• FL Bar Ethics Op. 64-72: Prosecutor as Criminal Defense Counsel
• FL Bar Ethics Op. 67-52: County Attorney Defending a Criminal Case in the County
• FL Bar Ethics Op. 62-58: Former Assistant U.S. Attorney Defending a Criminal Case

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-13/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-13-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 60-13
October 14, 1960
Advisory ethics opinions are not binding.
It is improper for a lawyer who is county prosecutor to defend those accused of crimes even though he does so only in counties or circuits other than the one in which he prosecutes.
Canon: 6
Opinions: ABA 16, 30, 72, 136, 192
Chairman Holcomb stated the opinion of the committee:
The Committee is requested to decide whether a lawyer could ethically represent clients in criminal actions being tried in counties or circuits other than his own.
Drinker on Legal Ethics, page 118, holds that "A county attorney, in charge of prosecuting crimes in his county, should not, while in office, undertake to obtain a pardon for one convicted of crime in his county. . . ." ABA Opinion 136. A public prosecutor in one state may not properly defend a person accused of crime in another state (ABA Opinion 30). A partner of a prosecuting attorney may not defend one accused of crime in another county (ABA Opinions 16, 192). A law firm cannot properly accept any employment which one of its partners cannot properly accept (ABA Opinion 72).
Although there is one dissent, the remainder of the Committee agree that representation of one accused of a crime in another county than his own by a County Prosecutor would be unethical conduct.