Can a county attorney who handles only civil matters defend a criminal case in the same county?

Plain-English summary

A county attorney, prompted by a Florida Bar Journal article on ethical considerations for city attorneys, asked whether he could defend a person charged with crime in his county. He advised that his duties related only to civil matters. The committee recalled its Opinion 60-22, since withdrawn, which had said that if the Board of County Commissioners controls or supervises the court, clerk, bailiff, or police officers who are the usual witnesses against a defendant, the county attorney should not represent the defendant.

The committee was satisfied that in this instance the county commissioners had no effective control over any such persons. It pointed to its Opinion 59-10, which found no impropriety in a county-commissioner lawyer trying a case before a circuit judge whose space, budget, and supplemental salary were controlled by the county commission. The committee concluded that the language from 60-22 was limited to the facts then before it and did not generally apply to all county attorneys, so the inquirer could properly represent the clients in question.

The committee added that opinions of the American Bar Association ethics committee are not binding on Florida Bar members and are at most persuasive, and that its own past opinions cited in the article were likewise confined to the particular facts then before it. Rather than undertake a general reassessment of prior opinions, the committee invited members to submit specific questions.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 and Additional Rule 25 on conflicting interests and the conduct of public-body lawyers. Concurrent conflicts are now addressed by Rule 4-1.7, and the special conflict rules for current and former government lawyers by Rule 4-1.11. Treat this page as historical context, not current guidance.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: Can a part-time government lawyer take private criminal defense work in the same county?

A: Under this opinion, the committee allowed it where the lawyer's county duties were civil only and the county commission had no control or supervision over the court, clerk, bailiff, or police officers who would be the usual witnesses against the defendant.

Q: Did the committee treat its earlier Opinion 60-22 as a general bar?

A: No. The committee said the restrictive language of 60-22, since withdrawn, was confined to the facts then before it and could not be read to apply generally to all county attorneys.

Background and rules framework

The opinion applied the former Canon 6 on conflicting interests, together with Additional Rule 25, to a lawyer who served a public body and also took private criminal defense work. Concurrent conflicts of interest are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar, and conflicts involving current and former government lawyers by Rule 4-1.11; the Model Rule analogues are Rules 1.7 and 1.11.

Citations and references

Rules of Professional Conduct:

• Canon 6 and Additional Rule 25 [Canons of Professional Ethics; now Rules 4-1.7, 4-1.11]

Other opinions cited:

• Florida Opinion 60-22 (since withdrawn): county attorney and county-controlled court personnel
• Florida Opinion 59-10: county-commissioner lawyer before a county-funded circuit judge

See also

• FL Bar Ethics Op. 68-35: Prosecutor Aide as Defender
• FL Bar Ethics Op. 68-57: Public Defender and Prosecutor

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-52/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-52.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-52
April 4, 1968
Advisory ethics opinions are not binding.
A county attorney whose duties relate only to civil matters may defend a person charged with crime in his county when the county commissioners have no control or supervision over the court, the clerk, the bailiff or police officers.
Canons: 6, Additional Rule 25
Opinions: 59-10, 60-22
Chairman MacDonald stated the opinion of the committee:
We are asked by a member of The Florida Bar who has been concerned about an article entitled "Ethical Considerations for City Attorneys," appearing in the November 1967 issue of The Florida Bar Journal, whether while serving as a county attorney he may defend a person charged with crime in that county. He advises that his duties relate only to civil matters. In our Opinion 60-22 [since withdrawn] it is stated that "if the Board of County Commissioners has control or supervision of the Court, the Clerk, Bailiff, or Police Officers who constitute the usual witnesses against the defendant, the County Attorney should not represent the defendant."
We are satisfied that in this instance the County Commissioners have no such control of any effective sort over any of these type persons. Moreover, as we have pointed out in our Opinion 59-10, there is no impropriety in a member of the Bar who is a county commissioner trying a case before a circuit judge whose allotment of space, departmental budget, supplemental salary are controlled by the county commission. Thus, in our judgment the cited language from Opinion 60-22 was necessarily limited to such facts as might have been before the Committee at that time and cannot be construed to generally apply to all county attorneys and more particularly to the one propounding the inquiry in question. Accordingly we conclude that the inquirer may properly represent the clients in question.
The Committee takes note that it has also received general inquiries concerning other portions of the cited article in The Florida Bar Journal, including in particular portions of the article relating to various opinions of the Committee on Professional Ethics of the American Bar Association. We emphasize that despite our great respect for the Committee of the American Bar Association its opinions are in no way binding upon members of The Florida Bar and at most are persuasive. We also take this occasion to emphasize that such opinions of this Committee as may have been cited in the article were necessarily confined, just as was Opinion 60-22, to particular facts then before the Committee. Rather than undertake a general reassessment of various opinions rendered by past committees on particular situations then before the Committee, which reassessment would in all likelihood contravene the policy of the Board of Governors limiting this Committee to rendering advisory opinions to members of The Florida Bar concerning their own proposed conduct, we suggest that interested members of the Bar submit to us any specific questions which they might have in this area. The Committee would then be in position to render such opinion as might seem to be the appropriate one in the light of the circumstances then propounded.
We again emphasize that we are not aware that any opinion of this Committee cited in the subject article was intended by the Committee as then constituted to constitute a general dissertation applicable to all circumstances and events pertaining to the handling of civil and criminal cases for private clients by attorneys who on occasion might represent public bodies.