Can an associate of a state attorney take appointed criminal defense work in federal or municipal court?

Plain-English summary

An associate of a state attorney in a metropolitan Florida community asked whether he could accept appointment as defense counsel for indigent defendants under the Federal Indigent Criminal Defense Act, appearing in the United States District Court, and whether he could defend persons charged with municipal ordinance violations in the local municipal court. The state attorney was not the prosecutor in either court.

The committee concluded that the nexus between the state attorney and the local police in that and similar metropolitan communities was so close that it would not be appropriate for the inquirer to appear for any defendants in the municipal court. As for the federal appointments, because there appeared to be no shortage of available counsel for indigent defendants in the United States District Court in question, the committee did not consider it advisable for the inquirer to accept those appointments.

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 on conflicting interests. Concurrent conflicts of interest are now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance.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 someone who works for the state attorney take court-appointed criminal defense cases?

A: Under this opinion, the committee advised against it in the inquirer's community, both for municipal court appearances and for federal indigent-defense appointments, given the close relationship between the state attorney and local police and the availability of other counsel.

Q: Did it matter that the state attorney did not prosecute in those courts?

A: The committee noted the state attorney was not the prosecutor in either court but still found the close nexus with local police, plus the availability of other counsel federally, made the appointments inappropriate.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests, to a lawyer affiliated with the prosecution who proposed to take on criminal defense work. Concurrent conflicts of interest are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Code of Professional Responsibility; conflict duties now in Rule 4-1.7]

See also

• FL Bar Ethics Op. 68-57: Public Defender and Prosecutor
• FL Bar Ethics Op. 69-26: Prosecutor Sitting as Judge

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-35/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-35-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-35
July 12, 1968
Advisory ethics opinions are not binding.
It would not be appropriate for an associate of a state attorney to accept appointment as counsel for criminal defendants under the provisions of the Federal Indigent Criminal Defense Act or to appear for criminal defendants in the municipal court in his community.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
We are asked by an associate of a state attorney in a metropolitan Florida community whether it would be appropriate for him to accept appointment as counsel for criminal defendants under the provisions of the Federal Indigent Criminal Defense Act and thus appear for the defendant in the United States District Court in his community, and secondly, whether it would be proper for him to participate in the defense of persons charged with violations of municipal ordinances in the local municipal court. Of course, it is evident the state attorney is not the prosecutor in either of the courts mentioned.
It is our opinion that the nexus between the state attorney and the local police is so close in this and other similar metropolitan Florida communities that it would not be appropriate for the inquirer to appear for any defendants in the municipal court. Moreover, there appearing to be no shortage of available counsel to appear for indigent defendants in the United States District Court in question, it would not appear to us to be advisable for the inquirer to accept these appointments.