Can an elected county prosecutor represent private clients in civil suits against the county or its agencies when his official duties cover only criminal matters?

Plain-English summary

A member asked about the propriety of an elected county prosecuting attorney representing private clients (1) in condemnation proceedings in which the county and the state are parties-defendant, and (2) in personal injury actions against county agencies, boards, or commissions not represented by the prosecutor.

A majority of the committee concluded that an elected county prosecutor should not represent private clients in civil litigation against the county or its agencies, boards, or commissions, even though he is charged only with representing the county in criminal matters and even though the county employs other attorneys for civil matters. The majority extended this view to cases where the prosecutor seeks enactment of a special relief bill for a private client seeking recovery from the county. It based its view on Canons 6 and 37 and on ABA Opinions 10, 16, 186, 262, and 278. In ABA Opinion 186, which addressed the "reverse side" of the problem (whether a county attorney representing the county only in civil matters could defend a person charged with crime), the ABA committee answered no, reasoning that an attorney representing the public should not accept employment where his duties to a private client and his public duties might conflict directly or indirectly, as such representation might destroy public confidence in the lawyer as a public official and bring reproach upon the profession.

Two members of the committee believed there would be no impropriety in an elected county prosecutor handling civil matters for a private client where the county is the defendant. They noted that in small counties most attorneys hold some public position, and that disqualifying them from representing private clients in situations not in direct conflict with their public duties could force clients to seek representation outside the county; they stressed the practical considerations involved. The opinion carries a caveat to compare Opinion 67-52.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6 and 37 of the Canons of Professional Ethics; conflicts of interest are now governed by Rule 4-1.7 and the conduct of current and former government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). The opinion itself carries a caveat to compare Opinion 67-52. 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: Can a county prosecutor represent private clients suing the county?

A: A majority said no. It concluded the prosecutor should not represent private clients in civil litigation against the county or its agencies, even though his duties cover only criminal matters and the county uses other lawyers for civil cases.

Q: Does it cover seeking a special relief bill against the county?

A: Yes. The majority extended its view to a prosecutor seeking enactment of a special relief bill on behalf of a private client seeking recovery from the county or a subdivision.

Q: Was the committee unanimous?

A: No. Two members believed there would be no impropriety where the matters were not in direct conflict with the prosecutor's public duties, stressing that in small counties most attorneys hold some public position and clients might otherwise have to look outside the county.

Background and rules framework

The opinion applied former Canons 6 (conflicting interests) and 37 (confidences) of the Canons of Professional Ethics and relied on ABA Opinions 10, 16, 186, 262, and 278. Conflicts of interest are now governed by Rule 4-1.7, and the special conflict rules for current and former government lawyers appear at Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11).

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rule 4-1.7]
• Canon 37 [Canons of Professional Ethics; confidences of a client]

Other opinions cited:

• ABA Op. 10, 16, 186, 262, 278: ABA committee opinions on a public lawyer's conflicting public and private duties

See also

• FL Bar Ethics Op. 66-1: A Prosecutor's Partner and Criminal Defense
• FL Bar Ethics Op. 66-62: Prosecutor Later Representing a Wrongful-Death Claimant
• FL Bar Ethics Op. 67-21: Former Assistant State Attorney and a Fee Split

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-17/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-17.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-17
April 1, 1965
Advisory ethics opinions are not binding.
A county prosecuting attorney should not represent private clients in civil suits against the county or any board or agency thereof, even though his official county duties relate only to criminal prosecutions.
Caveat: Compare Opinion 67-52.
Canons: 6, 37
Opinions: ABA 10, 16, 186, 262, 278
Chairman Smith stated the opinion of the committee:
In substance, a member of The Florida Bar inquires as to the ethical propriety of an elected county prosecuting attorney representing private clients (1) in condemnation proceedings in which the county and the state are parties-defendant and (2) in personal injury actions against agencies, boards or commissions of the county which are not represented by the prosecuting attorney.
It is the opinion of a majority of the Committee that an elected county prosecutor should not represent private clients in civil litigation against the county, or agencies, boards or commissions thereof even though the prosecutor is charged only with the duty of representing the county in criminal matters and even though the county, and subdivisions thereof, employ other attorneys for representation in civil matters. The majority also extends its view, as expressed, to cases in which the prosecutor seeks to obtain enactment of a special relief bill on behalf of a private client who seeks recovery from the county or a subdivision thereof. The majority bases its view upon the provisions of Canons 6 and 37 and upon certain opinions of the Professional Ethics Committee of the American Bar Association. Reference is made to Opinions 10, 16, 186, 262 and 278. In Opinion 186, the American Bar Association dealt with the "reverse side" of the problem now presented. The question there was whether a county attorney, who represented the county only in civil matters, could properly defend a person charged with crime in the county. The ABA Committee answered in the negative. In so doing, it noted the distinction between civil and criminal matters and indicated that, at first glance, there might be no conflict. The Committee concluded, however, that an attorney representing the public should not accept employment where his duties to a private client and his public duties might conflict either directly or indirectly. It was felt that such representation might tend to destroy public confidence in the lawyer as a public official and might bring reproach upon the profession.
Two members of this Committee believe there would be no impropriety in an elected county prosecutor handling civil matters for a private client in which the county, or a subdivision thereof, is the defendant. These members take special note of the fact that in small counties most attorneys hold some public position and that if these attorneys are disqualified from representing private clients in situations which are not in direct conflict with the public duties of the attorney, then the clients may be required to seek representation outside of the county. Stress is laid upon the practical considerations involved.